A  TREATISE 


ON  THE 


LAW  OF  WILLS, 


rNCLUDINa  THEIB 

EXECUTION,  REYOOATIO:^",  ETC.; 

ALSO  A 

FULL  DISCUSSION  OF  THE  RULES  AND  PRINCIPLES  OF  THEIR 
CONSTRUCTION,  TOGETHER  WITH  A  CONSIDERATION  OF 
THOSE  RULES  OF  THE  LAW  OF  REAL  PROPERTY 
ANT^  OF  THE  DOCTRINES  OF  EQUITY  WHICH 
RE  MOST  FREQUENTLY  APPLICABLE 
TO  TESTAjMENTARY  DISPOSI- 
TIONS OF  PROPERTY, 


^axH 


FULL  REFERENCES  TO  THE  LATEST  AMERICAN 
AND  ENGLISH  DECISIONS. 


BY 

H.  C.  UNDERHILL,  LL.  B., 

OF  THE  NEW  YORK   i^AR, 

AuTHOB  OF  A  "Treatise  on  the  Law  of  Evidenxe,"  and  A 
"Tkkatise  on  the  Law  of  Criminal  Evidencb." 


IN  TWO  VOLUMEa 

YOL.  II. 


CHICAGO: 

T.  ir.  FLOOD    AN  I)   (OMI'AXY. 

llMMt. 


T 

\^00 


Copyright,  1900, 

BY 

HARRY  C.  UNDERHILU 


STATE  JOURNAL  PRINTINO  COMPANY, 

Pklnters  and  Stereotypebs, 

madison,  wis. 


TABLE  OF  CONTENTS. 


VOLUME  II. 


CHAPTEE  XXIV. 

THE  CREATION  OF  TENANCY  IN  COMMON  AND  JOINT  TENANCY 

BY  WILL. 

Sec.  Page. 

532.  Devises  in  joint  tenancy  and  tenancy  in  common  distinguished      699 

533.  The  creation  of  joint  tenancy  at  common  law    ....      700 
534    Language  creating  tenancy  in  common  at  common  law     .         .       701 

535.  American  doctrine  —  Tenancy  in  common  implied  from  words 

of  division  or  partition     ........       703 

536.  When  two  or  more  devisees  of  an  estate  tail  are  tenants  in  com- 

mon ...........       704 

537.  Tenancy  in  common  by  a  devise  of  the  sjxme  land  to  two  or 

more  in  fee 70-t 

538.  Gifts  in  remainder  to  classes  as  joint  tenants     ....  704 

539.  Statutes  regulating  the  subject  of  joint  tenancy        .         .         .  705 

540.  The  constitutionality  of  statutes  abolishmg  joint  tenancy         .  706 

541.  The  characteristics  of  an  estate  by  tlie  entirety  .         .         .  707 

542.  The  creation  of  estates  by  the  entirety  in  wills    ....  707 

543.  Devises  to  husband  and  wife  as  tenants  in  common  with  others  709 
544  The  effect  of  statutes  abolishing  joint  tenancy  on  estates  by  the 

entirety 709 

545,  The  effect  of  statutes  regulating  the  property  status  of  married 

women  on  estates  by  the  entirety 710 

CHAPTER  XXV. 
GIFTS  BY  WILL  TO  CHILDREN  AS  PURCHASERS. 

546.  Wliethf-r '•c-liil(lren  "  is  a  word  of  purchase  or  of  limitation        .      711 
517.    ilxten.sion  of  the  meaning  of  the  word  "children  "     .         .         .       713 

548.  Bequests  and  devi.se8  to  "children"  a.s  purcha.sers  —  Primary 

meaning  of  tho  word         ........       714 

549.  The  word  "children"  does  not  pre8umj)tively  include  Bteivchil- 

drea 716 


G(;V433 


iv  TAHLE    OK    CONTENTS. 


Pago. 


717 
718 


r"  >■).■> 


1  :;;;> 


Sec. 

fijO.    The  status  of  an  ailoptod  ihilil  — When  it  inherits  as  heir  or 
issue         .....•••••• 

f).")!.   Cifts  to  children  iiichi.lt' those  of  different  marriages 

552.  (lifts  to  childrtMi  living  at  the  execution  of  the  will   .         .         .       720 

553.  When  the  class  is  to  be  ascertained  in  the  case  of  immediate 

gifts  to  children "^'^^ 

5.14.    Devises  to  children  where  distribution  is  to  be  at  majority 
555.    Construction  of  aclaase  directing  distrilmtion  wlicn  (he  young- 
est child  shall  attain  the  age  of  twenty-one     .... 
5.">r>.    Testimony  to  prove  the  age  of  a  legatee 727 

557.  The  ojieration  of  the  words  "  living,"  "then  living."  and  "sur- 

viving," in  determining  when  class  of  children  is  to  be  ascer- 
tained        "28 

558.  When  c-hildren  as  a  class  are  to  be  ascertained  in  the  case  of  a 

remainder        ..........       731 

559.  Gifts  to  children  born  or  to  be  born 734 

560.  Distribution  amongst  children,  when  to  be  per  eaj)/7a        .         .       736 

501.  Direction  for  an  equality  of  division  favors  distribution  per  cap- 

ita "i' 

502.  Whether  the  distribution  amongst  the  children  of  several  per- 

sons sliall  be  per  stirpes  or  per  capita 737 

503.  Where  children  take  by  substitution  the  distribution  will  be  i)er 

stirjics ''^^ 

504.  Mode  of  distribution  where  the  devise  is  to  individuals  and  the 

children  of  another 740 

505.  Erroneous  statement  of  the  number  of  children         .         .         .       742 
500.    Construction  of  provision  for  a  devise  over  in  case  legatee  dies 

without  children 744 

507.  Children  en  ventre  sa  mere 740 

508.  Presumption  of  legitimacy  —  Character  of  proof  of  illegitimacy 

of  legatee  .........      749 

509.  Competency  of  husband  or  wife  to  prove  legitimacy  .        .      750 

CHAPTER  XXVI. 

GIFTS  TO  ILLEGITIMATE  CHILDREN. 

570.  By  a  devi.se  to  "children,"  legitimate  children  only  are  meant      752 

571.  When  a  gift  to  "ciiildren"  generally  will  include  illegitimate 

children  where  there  are  no  others  .....       753 

572.  Parol  evidence  to  show  that  the  testator  meant  illegitimate 

children 755 

.573.    The  identification  of  the  children  by  name         ....  757 

574.  The  recognition  of  illegitimate  children  by  the  testator     .         .  759 

575.  Wiien  illegitimate  children  may  take  with  legitimate  children 

as  a  class  ..........  702 

576.  Testamentary  provisions  for  unljorn  illegitimate  children  .  703 

577.  Provisions  for  illegitimate  children  en  ventre  sa  mere        .         .  705 

578.  The  effect  of  judicial  decree  legitimatizing  illegitimate  children  767 


TABLE    OF    CONTENTS.  V 

CHAPTER  XXVII. 

WHEN  "CHILDREN"  IS  A  WORD  OF  LIMITATION  —  THE  RULE  IN 

WILD'S  CASE. 
Sec.  Page. 

579.  The  word  "  children  "  when  used  as  a  word  of  limitation   .         .      769 

080.  The  rule  in  Wild's  Case 770 

581.  When  children  must  be  living    .         .         .         .         .         .         .771 

582.  Immediate  devise  to  the  parent  and  children  when  the  children 

are  living  ..........       773 

583.  Whether  gift  to  "  A.  and  his  children  "  is  immediate  or  in  re- 

mainder to  the  children  ........       774 

584    Whetlier  the  rule  in  Wild's  Case  is  applicable  to  personal  prop- 
erty   776 

CHAPTER   XXVIII. 

GIFTS  TO  FAMILIES  AND  RELATIONS  AS  PURCHASERS. 

.585.    Definition  of  the  word  ''family ''  —  Gifts  to  families,  when  void 

for  uncertainty         .........       778 

586.  The  word  "famih'"  may  be  equivalent  to  "heir"       .         .         .       779 

587.  The  word  " family  "  may  be  equivalent  to  "children"  —  When 

the  liead  of  tlie  family  is  included  ....  .  780 

588.  The  word  "  family  "  may  mean  relations  or  next  of  kin      .         .  782 

589.  Definition  of  the  word  "  relations  "  as  statutory  next  of  kin       .  784 

590.  "  Relations  "  presumed  to  mean  those  by  consanguinity  —  Hus- 

band and  wife,  when  included  among  relations  or  next  of  kin      785 

591.  Gifts  to  relation  in  the  singular  —  When  illegitimate  relations 

are  included 787 

592.  Provisions  made  for  the  poor  or  needy  relations  of  the  testator  788 

593.  Powers  of  distribution  among  relations 789 

594.  Distribution  among  relations  as  a  class  is  usually  per  ca^9«7a     .  790 

CHAPTER  XXIX. 

GIFTS  TO  NEPHEWS  AND  NIECES.  BROTHERS  AND  SISTERS, 
DAUGHTERS,  COUSINS.  HUSBAND  OR  WIFE.  TO  SERVANTS. 
AND  TO  PERSONS  OF  THE  TESTATOR'S  NAME,  AS  PURCHAS- 
EliS. 

595.  "  Nephews"and  "nieces  "  mean  primarily  tho.so  l)y  consanguinity      792 

596.  When  a  provision  for  nephews  and  nieces  will  include  great- 

nephews  and  great-nieces         .......  794 

597.  Presumption  that  legitimate  nephews  and  nieces  are  meant       .  796 

598.  Children  of  a  nephew  or  niece  may  take  parent's  share      .         .  79(1 

599.  Gifts  to  brothers  and  si.sters         .......  799 

600.  Gifts  to  daughter  or  daughters  —  Number  incorrectly  staled      .  799 
001.    Gifts  to  liiisl)aiid  or  wife — When  chiiniiMl  l)y  a  person  wiio  is 

not  a  lawful  huslKind  or  wife  .......       M)l 

<»02.    From  what  time  a  will  sjM'aks  as  respects  a  <lovise  to  tiie  hu.s- 

band  or  wife 803 


819 


Vi  TABLE   OF    CONTENTS. 

Sec.  PaP'"- 

603.    Gifts  to  cousins— "When  class  is  ascertained       ....  805 

604-    Gifts  to  servants 806 

000.    Gifts  to  i)er&ons  of  a  particular  uamo 807 

CHAPTEK  XXX. 

GIFTS  TO  THE  HEIRS  AND  THE  NEXT  OF  KIN  AS  PURCHASERS. 

tliMl.    Words  of  liiuitaticn  and  words  of  imicliase  distinguished         .  809 

007.  Delinition  ol  tlie  word  "  heirs  "  wlien  used  as  a  word  of  purchase  811 

008.  The  inadiuis-sibility  of  i)arol  evidence  to  vary  the  meaning  of  the 

word  "heirs" 812 

()00.  Au  heir  takes  as  a  purchaser  land  devised  to  him  by  his  ancestor  813 
610.   The  period  at  which  class  is  to  be  ascertained  where  the  gift  is 

vested 814 

Oil.   Remainder  to  heirs  after  a  life  estate  in  one  who  is  an  heir  at  the 

death  of  tlie  testator 815 

010.   Gifts  to  lu'irs  of  living  person  —  Heirs  apparent  or  presumptive  — 

Recognition  of  ancestor  as  living     ......  817 

(W.l    Devises  to  heirs  peculiarly  described  —  Heirs  of  a  particular 

name        ........••• 

014.   The  construction  of  a  devise  to  the  "  heir  "  in  the  singular        .  820 

Ol.-).    The  meaning  of  the  term  "right  heirs" 821 

010.    Circumstances  under  which  the  word  "heirs  "is  equivalent  to 

the  word  "children "        ........  822 

017.    Heirs  may  mean  children  in  a  devise  in  fee,  and,  if  the  devisee 

die  "  without  heirs,"  then  over 824 

t'dSt.    When  the  word  "heirs"  means  devisees  or  legatees  .         .         .  825 

0 1 !).    The  word  "  heirs  "  in  gifts  of  personal  property  means  next  of  kin  826 

020.  Gifts  of  personalty  to  the  heir  or  heirs  as  persona  designata      .  829 

021.  Pei-sonal  and  real  property  blended  in  a  gift  to  the  heirs  .         .  830 

022.  Whether  a  husband  or  wife  is  included  in  the  word  "heirs"     .  831 

023.  Wliether  heirs,  when  purchasers,  take  per  stirpes  or  per  capita  832 

024.  When  a  distribution  per  stirpes  is  favored  ....  834 
<)25.  Statutory  modification  of  the  laws  of  descent  ....  836 
f.JO.    "  Next  of  kin  "  simpliciter  includes  only  nearest  blood  relations  836 

027.  Construction  of  the  words  "next of  kin"  when  the  statute  of 

distribution  is  referred  to        ......         .  838 

028.  Next  of  kin  specifically  described  as  of  a  particular  name  or 

sex  —  Gifts  to  worthy  next  of  kin    ......  840 

029.  When  the  next  of  kin  are  to  be  ascertained  as  a  class  in  case  of 

immediate  gifts        .........  841 

030.  When  ascertainable  as  a  class  if  the  vesting  is  postponed  .         .  842 

031.  Ascertainment  of  the  class  when  a  life  estate  is  given  to  one  of 

the  next  of  kin         .....         v         ..         .  843 
t):!2.    Immediate  gifts  to  the  next  of  kin  of  other  persons  than  the  tes- 
tator           844 

63:t   Presumption  that  testator  means  legitimate  next  of  kin  .        .  845 


TABLE    OF    COXTENTS. 


VU 


CHAPTER  XXXI. 

GIFTS  TO  PERSONAL   REPRESENTATIVES   AND   EXECUTORS   AS 
PURCHASERS  AND  BY  REPRESENTATION. 


Sec. 

634.  T\\e  primary  meaning  of  the  words  "legal "  or  "personal  repre- 

sentatives"       ......... 

635.  Legal  or  personal  representatives  may  mean  "next  of  kin" 

636.  Expressions  favoring  the  next  of  kin  as  personal  represents 

tives  —  Division  per  sfirpe.'i  or  per  capita 

637.  Mode  of  distribution  among  personal  representatives 

638.  Gifts  of  real  property  to  legal  or  personal  representatives  . 

639.  When  executors  and  administratoi-s  take  by  limitation,  and  not 

as  purchasers    ......... 

640.  Whether  an  executor  takes  in  trust  or  beneficially     . 

641.  Language  which  may  indicate  that  the  executor  is  to  take  in 

trust         

642.  Bequests  to  executors  for  their  own  benefit 

643.  Beneficial  gifts  to  executors  or  trustees  by  name  —  When  con- 

ditional upoii  the  acceptance  of  the  office        .... 

CHAPTER  XXXII. 


Page. 

846 
848 

8.10 
851 
852 


852 
854 

8.55 
856 

857 


TESTAMENTARY  ESTATES  IN   FEE  TAIL— THE  CONSTRUCTION 
OF  «  HEIRS  OF  THE  BODY  "  AS  WORDS  OF  LIMITATION. 

644.  Estates  tail  at  the  common  law 860 

64.5.    Language  by  which  an  estate  tail  may  be  created      ,         .         .  861 

646.  An  estate  in  fee  tail  may  be  created  by  informal  words     .         .  861 

647.  The  words  "  male  heirs  "  create  an  estate  tail     ....  862 

645.  Limitations  in  special  fee  tail      . 864 

649.    The  word  "son  "  as  a  word  of  limitation 865 

6-50.    Estates  tail  by  implication 867 

651.  Words  directing  an  equality  of  division  among  heirs  of  the  body  870 

652.  Words  of  limitation  and  inheritance  added  to  "heirs  of  the 

body" 874 

653.  Estates  tail  in  the  United  States 874 

654.  Statutory  regulations  of  estates  tiiil  in  the  United  States  .         .  876 

CHAPTER  XXXIII. 
THE  APPLICATION  OF  THE  RULE  IN  SHELLEY'S  CASE  TO  WILLS. 

65.5.    Tlie  origin  and  history  of  the  rule  in  Shelley's  case   .         .         .  878 

656.  The  life  estate  in  the  ancostor  and  the  remainder  must  be  cre- 

ated by  the  sjime  iiLstrument  .......  881 

657.  ExceptioiLS  to  the  oinration  of  the  rule 882 

658.  WhHth(?r  the  rule  will  yield  to  the  intention       ....  883 
6-59.    Engli.sh  cjises  in  which  an  i-xjtianatory  context  was  hold  to  ex- 
clude the  rule HHd 

660.    The  nx'aning  wliic-ji   may  attadi   to  "heirs  of  the  body  "  from 

llie  context       .....••...  887 


Vlll  TAr.LK    OF    CUNTKNTS. 

S«>o.  Papo. 

(ifM.  Terms  in  whir-h  "  lioirs  "  or  '"  lioirs  of  the  body  "  may  be  described  S><*.) 
•5»W.    The  rule  is  not  api>lii-able  to  reinainch'rs  to  children  .         .         .891 

GIKJ.   The  rule  iu  Slielley's  case  as  applied  in  etjuity    ....  bl)l! 

(\M.    Trusts  executory  and  executed  defined  and  distinguished           .  89G 

«>fi5.    Executory  trusts  in  wills 89(5 

♦560.    The  rule  in  Shelley's  case  in  the  United  States  ....  903 

(5G7.    StJitutes  abolishini;  the  rule  in  the  United  States        .         .         .  90.") 

G08.  The  rule  in  Shelley's  case  applied  to  personal  property  .  .  90(» 
008u,  The  gent'ral  ellect  and  the  practical  operation  of  the  rule  in 

Shelley's  case 900 

CHAPTER  XXXIV. 

THE  WORD  "ISSUE"  AS  A  TF.RAI   OF  PURCHASE  AND   OF  LBI- 

ITATION. 

CG9.    "Whether  the  word  "  issue  "  is  a  word  of  limitation  or  a  word  of 

purchase  ...........  909 

G70.  A  devise  to  "  A.  and  his  issue  "  crciites  an  estate  tail  .  .  .  91(» 
G71.    The  effect  of  added  words  of  inheritance  in  modifying  a  gift  of 

a  remainder  to  issue         ........  912 

G72.    The  addition  of  words  of  distribution  to  a  devise  to  issue  —  Issue 

maj'  take  as  tenants  in  common       .         .         .         .         .         .913 

G73.    A  devise  to  "  A.  for  life,  and  then  to  his  issue,"  converted  into  a 

fee  tail  by  tlie  rule  in  Slielley's  case  .....  917 
G74.    Definition  and  construction  of  the  word  "  issue "  when  it  is  a 

word  of  purchase 918 

075.    The  restriction  of  the  word  "  issue  "  to  children  as  purchasers  920 

676.  Mode  of  distribution  among  issue  as  purchasers          .         .         .  924 

677.  Meaning  of  the  word '•  descendant "    ......  925 

678.  Mode  of  distribution  among  descendants 927 

CHAPTER  XXXY. 

THE    CREATION    OF    ESTATES    IN    FEE    WITH    AND    WITHOUT 
WORDS  OF  INHERITANCE  OR  PERPETUITY. 

G79.   A  devise  of  land  in  indefinite  language  creates  a  life  estate  only 

at  common  law        .........       929 

680.   The  effect  of  an  introductory  clause  purporting  to  dispose  of  the 

whole  estate 931 

G><1.    Tlie  operation  of  the  word  "estate"  in  conveying  the  fee  .         .       933 

682.    An  express  devise  for  life  is  not  enlarged  into  a  fee  by  a  gift  of 

the  estate 934 

083.    Fee  simple  in  the  beneficial  interest  created  by  a  devise  in  trust      935 

684.  Words  of  inheritance,  when  not  necessary  to  create  a  fee  at  com- 

mon law  ...........       935 

685.  A  direction  to  the  devisee  of  land  to  pay  debts  and  legacies  may 

enlar;^e  his  estate  to  a  fee 936 

686.  A  power  of  disjKjsjvl  may  raise  a  fee  by  implication    ...      938 


TABLE    OF    CONTENTS. 


IX 


l^ec.  Page. 

687.  A  life  estate  with  a  power  of  sale  for  support     ....  940 

688.  A  life  estate  with  power  of  appointment  by  will        .         ,         .  943 

689.  A  devise  of  the  fee  simple  not  cut  down  by  a  devise  of  "  what 

remains" 945 

690.  The  effect  of  a  devise  over  on  death  during  minority  in  creating 

a  fee 947 

691.  Gifts  for  life  of  consumable  articles 949 

692.  A  bequest  of  the  rents  and  profits  of  land  carries  the  land        .  949 

693.  Statutory  changes  in  England  of  tlie  rule  which  required  words 

of  inheritance  to  pass  the  fee  . 951 

694   Statutory  regulations  in  the  United  States        ....  952 

CHAPTER  XXXYL 

THE  DOCTRINE  OF  EQUITABLE  CONVERSION  IN  RELATION 

WILLS. 
695.    The  definition  and  origin  of  equitable  conversion       .        . 


696.  The  intention  of  the  testator  to  effect  a  conversion    . 

697.  A  power  of  sale  in  will  alone  does  not  convert  —  The  direction 

to  sell  must  be  imperative        ...... 

Direction  to  sell  land  for  the  purpose  of  paying  debts  —  When  it 
converts  .......... 

Conversion  without  the  creation  of  an  express  trust  to  sell 

A  discretion  as  to  the  time  and  the  place  of  sale  does  not  pre- 
vent a  constructive  conversion        ..... 

Conversion  where  no  express  power  of  sale  is  conferred     . 

The  date  at  whicli  a  constructive  conversion  takes  place  . 

The  sale  of  land  after  tlie  death  of  the  tenant  for  life 

04.    Blending  ])roceeds  of  land  with  personal  property  — The  effects  of 

O.J.    Conversion  depending  upon  a  contingency,  or  upon  the  consent 

or  request  of  a  legatee 

A  direction  to  sell  at  a  fixed  price       ..... 

The  effect  of  an  option  to  purchase  given  to  a  beneficiary 

Conversion  in  the  case  of  land  contracted  to  be  sold  by  the  tes- 
tator        .......... 

709.  Conversion  in  the  case  of  land  contracted  to  be  bought  by  the 

testator    .......... 

710.  Lands  devised  and  subject  to  an  option  to  purchase  . 

711.  Conversion  in  the  case  of  land  taken  for  public  use   . 

712.  Conversion  by  an  order  of  court  of  land  belonging  to  an  infant 

or  a  lunatic 

713.  The  effects  of  a  constructive  conversion     .... 

714.  Dowffr  and  curt«'sy  in  property  converted  .         .         . 

715.  The  failiire  of  tin;  purpr)se  of  a  conversion  —  Reconversion 
710.    Resulting  trust  for  tlie  benefit  of  the;  next  of  kin 

710a.  Tlie  nature  of  the  iirojierty  in  which  a  reconversion  is  liad  f 
the  Ijcnefit  of  the  heir      ....... 

717.  Conflict  of  laws  in  relation  to  eiiuitable  conversion    . 

718.  Double  conversion  dednt-d  ....... 

44» 


698. 

699. 
700. 

701. 
702. 
703. 


700. 
707. 
708. 


TO 

954 

957 

957 

9G0 
901 

963 
964 
965 
966 
967 

969 
971 
971 

973 

974 
976 
978 


980 
983 
985 

\m\ 

989 
9Si» 
9'.»0 


994 
996 


X  TAliLK    OF    CONTENTS. 

Sec.  Pago. 

719.  Election  to  take  the  property  unconverted  .  .  .  •  991 
7~0.  Who  may  elect  to  tivke  tlie  property  unconverted  .  ,  .  993 
701.    All  i)ers(>ns  at  interest  must  concur  in  electing  ....  993 

722.  When  an  election  must  be  made 994 

723.  What  acts  constitute  an  election  to  take  property  unconverted 
724    Election  by  remaindermen  to  take  property  unconverted  .         . 

725.    When  tl»e  tenant  in  tail  may  elect 997 

72oa.  No  constructive  conversion  when  money  is  at  home  ...  997 

CHAPTER  XXXVII. 

THE   DOCTRINE   OF  EQUITABLE    ELECTION   AS   RELATING   TO 

WILLS. 

720.  Definition  and  general  doctrine  of  election         .        .        •        .  1000 

727.  The  origin  of  the  doctrine  of  election          •         •        •         •        •  1001 

728.  The  foundation  of  the  doctrine  of  election          ....  1003 

729.  The  effect  of  the  election  —  Whether  based  on  compensation  or 

forfeiture 100 1 

730.  Presumption  against  the  necessity  for  an  election  —  The  testator 

must  intend  to  dispose  of  the  property  of  another  .        .        .  1003 

731.  Finality  of  an  election  —  Its  revocation  when  made  by  mistake 

or  procured  by  fraud  or  bad  faith 1013 

732.  A  case  for  an  election  does  not  arise  where  the  will  is  invalid   .  1017 

733.  A  party  taking  title  indirectly  is  not  put  to  his  election  by  a  gift 

under  the  will 1021 

733a.  The  period  within  which  the  election  must  be  made          .         .  1023 

734.  Whether  parol  evidence  is  receivable  to  show  an  intention  to 

require  an  election 1023 

735.  What  acts  constitute  an  election  to  take  under  the  will    .         .  1023 

736.  Not  material  that  the  testator  supposes  he  owns  the  property 

devised 1026 

737.  Election  by  infants  and  incompetent  persons     ....  1026 

738.  The  doctrine  of  election  in  relation  to  the  claims  of  creditors    .  1028 

739.  Election  between  gifts  by  the  same  will 1028 

740.  Election  in  the  case  of  a  wall  devising  land  in  different  states  .  1029 

741.  Cases  of  election  under  powers  of  appointment          .         .         .  1033 

742.  Election  among  tenants  in  common,  and  between  the  life  ten- 

ant and  remaindermen 10o3 

713.    The  riglit  of  election  does  not  inure  to  heir        .         .         •         .  1034 

744    The  doctrine  of  election  in  its  application  to  dower  .         .         .  1036 

745.  A  general  devise  of  land  to  the  widow  or  a  devise  of  land  in 

trvist  to  sell  does  not  bar  dower 1040 

746.  Presumption  of  an  election  by  the  widow  from  an  equality  of 

division 1043 

747.  The  effect  of  an  election  by  the  widow  to  take  under  the  will  .  1045 

748.  Compensation  to  widow  wlien  devise  taken  in  lieu  of  dower  fails  lOoO 

749.  Statutory  provisions  regulating  the  widow's  election          .         .  1051 

750.  Election  in  relation  to  devises  of  community  property       .         .  1054 

751.  Election  in  the  case  of  a  devise  of  the  homestead       .        .        .  105G 


TABLE    OF   CONTEXTS.  XI 

Sec.  raga. 
753.    Election  in  the  case  of  a  bequost  of  the  proceeds  of  a  policy  of 

insurance 10.38 

753.  The  husband's  right  to  elect  as  respects  his  curtesy  ,        ,        .  1059 

754.  Curtesy  in  laud  in  separate-use  trust 1061 

CHAPTER  XXXYIII. 

DONATIONS  MORTIS  CAUSA, 

755.  Donation  mortis  causa  defined,  and  the  origin  of  the  doctrine 

investigated     .        . 1063 

756.  The  necessity  for  the  existence  of  an  immediate  apprehension  of 

death 1067 

757.  The  necessity  for  delivery,  actual  or  constructive  —  The  revo- 

cable character  of  the  donation 1068 

758.  The  character  and  mode  of  the  delivery 1068 

759.  Gifts  causa  mortis  of  savings  bank  books,  checks  and  negotiable 

insti'uments 1070 

760.  Gifts  causa  mortis  in  trast 1074 

761.  The  character  and  burden  of  proof  to  establish  a  gift  causa 

mortis 1075 

CHAPTER  XXXIX. 

ANNUITIES. 

763.    Annuities  defined  and  distinguished  from  rent  charges  and  leg- 
acies          1078 

763.  An  annuity  in  general  terras  presumed  to  be  given  for  life  only    1080 

764.  Language  by  which  an  annuity  in  fee  is  created  —  Rules  regu- 

lating the  descent  of  perpetual  annuities        ....     1081 
705.    The  circumstances  under  which  the  annuity  may  be  com- 
muted—  The  effect  of  the  death  of  an  annuitant  where  pay- 
ment is  postponed ,        .     1083 

766.  The  apportionment  of  annuities  ....,,     1083 

767.  When  annuities  are  payable 1084 

768.  Circumstances  under  which  the  corpus  of  a  fund  may  be  em- 

ployed to  pay  an  annuity — The  payment  of  arrears  from  sur- 
plus income »        ,         .     1086 

709.    Abatement  of  annuities      ........     1089 

770.  Annuities  payable  wliile  the  annuitant  remains  unmarried  or 

while  she  is  living  separate  from  her  husband         •        •        •     1089 

CHAPTER  XL. 

TESTAMENTARY  USES.  TRUST  ESTATES  AND  TOWERS. 

771.  The  origin  and  early  employment  of  uses 109'3 

772.  The  ex(;«'[)tioiis  to  the  English  htutute  of  uses  —  Statute  does  not 

apply  to  chattels loit.l 

773.  Active  uses  aro  not  executed  by  the  slat uto       ....     l(i'.»<> 


TCll 


TAni.E    OF    C(^N'TENT3. 


774.    Uses  for  the  benefit  of  inarriod  women  are  not  exeoutod  by  the 
statute      .......... 

77.").    A  use  upon  a  use  is  not  executctl  hy  the  statute 

776.  The  statute  of  uses  in  the  United  States     .... 

777.  Future  and  executory  uses 

778.  Shifting,  springing  and  contingent  uses      .... 

779.  Tlie  law  of  modern  trusts 

780.  Statutes  reguhiting  trusts  in  the  United  States 

781.  Language  b}'  which  a  trust  may  bo  created  — The  duration  of 

thp  estate  taken  by  the  trustee  ..... 
783.  Trusts  to  sell  land — When  i)ower  of  sale  only  is  created  . 
78y.  Tlio  power  of  an  executor  to  sell  lands  .... 
^84.   The  execution  of  a  power  of  sale  by  surviving  executors    . 

785.  The  acceptance  of  the  trust 

786.  The  power  of  equity  to  appoint  a  trustee    .... 

787.  The  removal  of  trustees       . 

788.  Tlie  merger  of  the  equitable  and  the  legal  estates 
781).    The  protection  and  preservation  of  the  trust  proj^erty  by  the 

trustee  —  The  degree  of  cai-e  required  .... 
789a.  A  trustee  cannot  purchase  the  trust  property  —  The  remedy  of 

the  cestui  qne  trust  ........ 

700.   The  liability  of  trustees  for  investment  of  personal  property  in 

trust         

791.  The  liability  of  a  purchaser  for  the  application  of  the  trust  prop- 

erty   

792.  Definition  of  a  precatory  trust 

793.  Particular  exami)les  of  language  which  is  testamentary,  and  not 

l)recatory  merely      ........ 

794.  Tiie  modern  rule  as  to  the  creation  of  precatory  trusts       . 
79.").    The  relations  between  the  trustee  and  the  testator     . 
790.    Where  the  discretion  is  absolute  no  trust  is  created   . 

797.  Precatory  words  in  a  devise  to  a  person  for  himself  and  children 

798.  Powers  of  ap|)ointment  defined  and  classified     .         .         . 

799.  Language  necessary  to  be  used  to  create  a  power       . 

800.  The  mode  of  the  execution  of  the  power     .... 
■801.    The  execution  of  a  power  of  appointment  by  Avill  by  a  general 

devise       .......... 

€02.    Etjuitable  remedies  for  the  non-execution  of  powers  . 
^03.    Tlie  fraudulent  and  improper  and  excessive  execution  of  powers 
804.    The  illusory  execution  of  powers         .         .         •         .         , 
80.1.    The  extinguishment  of  powers    ...... 

■80(5.    Wlio  may  he  the  donee  of  a  power      ..... 

807.    Powers  when  void  for  remoteness       ..... 


Page. 


CHAPTER  XLI. 

THE  RULES  REGULATING  CHARITABLE  GIFTS  BY  WILL. 

•80.S.    Charity  defined 1186 

•809.   The  law  of  charitable  gifts  in  England  prior  to  the  passage  of  the 


statute  of  Elizabeth 


1186 


TABLE    OF    CONTEXTS.  Xlll 

Sec.  Page. 

810.  The  force  and  operation  of  the  statute  of  Eh'zabeth  in  the  states 

of  the  American  Union 1191 

811.  The  charity  must  be  a  public  one        ......  1195 

812.  The  validit}'  of  bequests  for  religious  purposes  ....  119J> 

813.  The  validity  of  bequests  for  masses  in  England  and  America    .  1203 

814.  Gifts  for  educational  purposes,  to  establish  schools,  pay  teachers, 

etc 1204 

815.  Gifts  for  scientific  purposes 1206 

816.  Testamentary  provisions  for  the  i)oor  —  Validity  of   .         .         .  1207 

817.  Definition  and  classification  of  the  poor 1208 

818.  Gifts  to  orphan  asylums  and  for  the  benefit  of  orphans  and  wid- 

ows    1211 

819.  The  validity  of  testamentary  gifts  to  the  national  or  state  gov- 

ernment   1213 

820.  Charitable  gifts  for  the  purpose  of  effecting  a  change  in  existing 

laws 1214 

821.  Gifts  for  general  benevolence  or  for  benevolent  purposes  .         .  1217 

822.  Miscellaneous  cases  of  charitable  gifts 121i) 

823.  Testamentary  provisions  for  the  erection  and  care  of  monuments  1221 

824.  The  doctrine  of  e.vpres  as  applied  to  charitable  gifts  by  will      .  1224 
82.1.    Tiie  status  of  the  c//p?'(?s  doctrine  in  the  United  States      .         .  1226 

826.  Uncertainty  and  indefiniteness  as  regards  charitable  gifts         .  1233 

827.  The  indefiniteness  of  the  beneficiaries  of  the  charity          .         .  1233 

828.  The  jurisdiction  of  the  court  of  equity  to  appoint  trustees  of  a 

charitable  trust 1236 

829.  Charitable  gifts  to  institutions  which  are  to  be  incorporated  in 

the  future 1238 

830.  The  validity  of  charitable  gifts  to  unincorporated  and  voluntary 

societies 1241 

831.  Misnomer  in  the  case  of  gifts  to  charitable  institutions      .         .  1243 

832.  Charitable  gifts  to  executors  or  trustees  with  delegation  of  the 

power  to  select  the  institutions  or  objects  which  are  to  be 

benefited 124& 

833.  The  validity  and  performance  of  conditions  which  are  attached 

to  charitable  gifts    .........  1253 

834    The  effect  of  tiie  consolidation,  division  or  dissolution  of  a  cor- 

r)oration  which  is  the  donee  of  a  charitable  gift  .  .  1254 
835.    Definition  of  the  words  pointing  out  the  area  within  which  the 

chariUible  funds  are  to  Im3  distributed  .....  125."» 
8;}6.    Procurement  of  charital)lo  bo(iuest  by  unfair  means,  fraud  or 

umlue  influence        .........  1356 

837.    Tlie  Knglish  statutes  of  sujjerstitious  uses   .....  1258 

H'-iH.    The  validity  of  bctjui'sts  for  the  supjtort  of  tlus  lioinan  Catholic 

churcli  in  Hngland    .........  1259 

S39.    The  AiiH-ricaii  view  of  thi- doctriiw  ()(' su|)<"rstitious  uses    .         .  1251> 

HIO.    The  Kngli.sh  statutes  of  mortmain 12(51 

811.  SUitutory  liinitati<»ns  ujion  tiie  valui'  of  piitpfit y  which  can  l»e 

owtu'il  by  churitaMc  c<ir|iorations    ......  12(515 

812.  Statutory  liniilalions  u|Min  tlm  lime  of  <'liaritahl('  gifts  by  will  \'H\~> 
843.    Tlie  law  of  testamentary  charitahlc  gifts  in  New  York      .         .  1206 


XiV  TABLE    OF   CONTENTS. 

CHAPTER  XLII. 

THE  CONSTRUCTION  AND  MEANING  OF  GIFTS  OVER  ON  DEATH 

AVITIIOUT  ISSUE, 
St'c.  Pago- 

844    "What  constitutes  an  indefinite  failure  of  issue  ....     1269 

845.  A  conditional  or  determinable  fee  is  created  where  the  failure 

of  issue  is  a  definite  failure  —  Conditional  fees  distinguished 
from  estates  in  fee  tail 1273 

846.  The  estate  of  the  primary  devisee  where  the  failure  of  issue  is  a 

definite  failure 1274 

847.  The  invalidity  for  remoteness  of  an  executory  devise  of  the  fee 

on  an  indefinite  failure  of  issue  after  a  devise  of  the  fee  simple    1276 

848.  The  failure  of  the  testator's  issue  means  a  definite  failure  of  issue    1277 

849.  Definite  failure  of  issue  is  meant  by  a  devise  over  on  death  with- 

out issue  under  majority  .......     1277 

6"i0.    A  definite  failure  of  issue  is  meant  by  a  devise  over  to  persons 

then  surviving  .........     1278 

Sol.    Tlie  meaning  of  the  failure  of  issue  at  or  after  the  death  of  a 

primary  taker  of  the  fee  .  ......     1279 

852.  Presumption  in  favor  of  strict  construction  in  case  of  personal 

property  . 1281 

853.  Cross-remainders  by  implication  after  the  failure  of  issue  —  De- 

vises in  fee  and  devises  in  tail  distinguished  .        •        •        •    1281 

CHAPTER  XLIII. 

THE  VESTING  OF  FUTURE  DEVISES  AND  LEGACIES. 

854.  Definition,  classification  and  characteristics  of  contingent  re- 

mainders ...........  1285 

855.  The  peri^etuity  created  by  a  contingent  remainder    ...  1287 

856.  The  happening  of  the  contingent  events 1289 

857.  The  character  of  remainders  to  heirs 1291 

858.  Conditional  limitations  and  remainders  which  are  dependent 

\i\)on  the  remarriage  of  a  tenant  for  life  .....     1293 

859.  Remainders  dependent  upon  the  death  of  a  life  tenant  without 

surviving  issue  or  cliildren •        .  1295 

860.  Vested  remainders  defined •        •         .  1297 

861.  An  early  vesting  is  favored  by  the  law 1299 

862.  The  judicial  lean  ing  in  favor  of  vested  gifts  where  the  testament- 

ary disposition  is  residuary      .......  1300 

863.  Examples  of  remainders  which  have  been  held  to  be  vested      .  1301 

864.  When  remainders  to  classes  are  vested 1302 

865.  Contingent  remainders  to  classes        ......  1304 

S66.  Vested  interests  may  be  created  by  directions  for  the  future  di- 
vision of  land  or  of  money,  or  for  the  future  payment  of  a  leg- 
acy    1307 

867.  Vested  remainders  which  are  subject  to  be  divested  by  some 

future  event     ..........     1311 

868.  The  effect  of  a  power  of  disposal  on  a  vested  remainder    .        .     1313 

869.  The  vesting  of  devises  and  legacies  at  majority  .        ,        .     1315 


TABLE    OF    CONTENTS.  XV 

Sec.  Papo. 

870.  Contingent  legacies  which  vest  only  at  majority  in  a  legatee    .  1318 

871.  The  effect  of  a  limitation  over  on  death  during  minority  in  vest- 

ing a  legacy 1321 

872.  The  effect  of  the  gift  of  the  intermediate  income  on  the  vesting 

of  a  legacy 1323 

873.  The  vesting  of  pecuniary  legacies,  and  particularly  of  those 

charged  upon  the  rents  and  proceeds  of  land  ....  1327 

874.  The  definition  and  classification  of  executory  devises         .         .  1329 

875.  Executory  devises  are  not  affected  by  the  acts  of  the  holder  of 

the  precedent  estate 1330 

876.  The  effect  of  the  failure  of  an  executory  devise          ...  1331 

877.  The  transfer  of  future  vested  estates  ......  1333 

878.  The  acceleration  of  future  estates       ....*.  1334 

CHAPTER  XLIT. 

THE  LAW  OF  PERPETUITIES  AND  REMOTENESS  OF  VESTING. 

879.  The  definition  of  a  perpetuity 1337 

880.  The  law  of  perpetuities  —  General  considerations       .         .         .  1339 

881.  The  rule  of  remoteness  in  the  vesting  of  contingent  remainders  1340 

882.  The  origin  of  executory  devises  and  of  the  modern  rule  of  per- 

petuity       1343 

883.  The  possibility  of  the  happening  of  the  future  event .         .         .  1347 

884.  The  validity  of  future  limitations  to  unborn  persons  .        .        .  1349 

885.  The  rule  of  remoteness  of  vesting  and  of  perpetuities  in  relation 

to  contingent  gifts  to  grandchildren  as  a  class        .         .         .  1351 
8S6.    The  invalidity  of  the  suspension  of  the  power  of  alienation  for  a 

period  which  is  indefinite  or  which  is  not  measured  by  lives  1353 

887.  The  period  is  to  begin  at  the  death  of  the  testator      .         .         .  1355 

888.  Vested  estates  are  not  within  the  rule  of  perpetuities        .         .  1356 

889.  The  effect  of  a  power  of  sale  to  prevent  the  operation  of  the  rule 

of  perpetuities 1357 

890.  The  rule  of  perpetuities  in  relation  to  charitable  gifts         .        .  1359 

891.  Devises  for  charitable  purposes  may  offend  the  rule  when  made 

to  non-existent  corporations     .......  13G1 

892.  Devise  over  on  the  termination  of  a  charity  —  When  void  for  re- 

moteness ...........  1362 

893.  The  suspension  of  the  power  of  alienation  during  minorities      .  1364 

894.  Tlie  separation  of  gifts  to  classes  —  When  not  permitted    .         .  1365 

895.  The  circumstances  under  which  class  gifts  may  be  separated    .  1368 

896.  The  effect  of  tlie  invalidity  of  a  devise  on  the  next  expectant 

limitation  following  it      .......         .  1370 

897.  The  stiitutory  regulations  of  the  rule  of  peri)etuity  in  the  United 

States 1373 

898.  Tlie  rule  of  poriK'tuities  in  Connecticut       .....  1373 

899.  Cases  illu.stratinK  the  New  York  rule  of  perpetuities  .         .         .  1374 

900.  The  Htatutory  rule  of  perpetuities  in  Wisconsin  ....  1377 

901.  The  su.sjH'n.Hion  of  alit-iiation  for  the  iMirposo  of  accumulating 

income      ...........  1378 

002.    The  validity  of  aicuiiuilation.s  for  cliarity  .         .         .  1381 


XVi  TABLE   or   CONTENTS. 

CHAPTER  XLY. 

THE   UNCERTAINTY   OF   THE   LANGUAGE   AND    THE   ADMISSI- 
BILITY OF  PAROL  EVIDENCE. 
See.  I'^g^- 

903.    Tlie  uncertainty  of  testamentary  dispositions  —  The  degree  of 

certainty  retiuired I'j^i 

901.    Tlie  invalidity  of  a  bequest  or  a  devise  of  an  indefinite  amount 

or  quantity ^^^^ 

90.").    Gifts  whu'ii  are  void  because  of  an  uncertainty  of  the  bene- 

Ik'iary 1389 

90G.   "When  a  gift  of  what  may  remain  after  a  void  gift  is  invalid  for 

luicertainty  of  amount 1393 

907.  Construction  of  gifts  to  be  enjoyed  by  several  in  succession       .     1394 

908.  Parol  evidence  of  the  actual  intention  of  the  testator  not  con- 

tained in  tiie  will  is  inadmissible  if  introduced  solely  for  the 
purpose  of  influencing  the  construction  of  the  testator's  lan- 
guage      .....•••.••     1395 

909.  Parol  evidence  to  show  the  circumstances  of  the  testator  .         .     1396 

910.  Patent  and  latent  ambiguities  defined  — The  admissibility  of 

l)arol  evidence  to  explain  latent  ambiguities  ....     1398 

911.  The  admissibility  of  parol  evidence  to  identify  the  subject-matter 

of  a  legacy        ...,....••  1101 

912.  Parol  evidence  to  show  mistakes  and  supply  omissions       .         .  1401: 

913.  Parol  evidence  to  explain  the  meaning  of  words        .         .         .  1406 

914.  The  uncertainty  of  terms  descriptive  of  real  property        .        .  140O 


THE  LAW  OF  WILLS. 


THE  LAW  or  WILLS. 


CHAPTEPt  XXIY. 

THE  CREATION  OF  TENANCY  IN  COMMON  AND  JOINT  TENANCY 

BY  WILL. 


§  532.  Devises  in  joint  tenancy  and 
tenancy  in  common  dis- 
tinguished. 

533.  The  creation  of  joint  tenancy 

at  common  law. 

534.  Language  creating  tenancy  in 

common  at  common  law. 

535.  American  doctrine  —  Tenancy 

in  common  implied  from 
words  of  division  or  parti- 
tion. 

536.  When  two  or  more  devisees  of 

an  estate  tail  are  tenants  in 
common. 

537.  Tenancy  in  common  by  a  de- 

vise of  the  same  land  to  two 
or  more  in  fee. 

538.  Gifts  in  remainder  to  classes 

as  joint  tenants. 


§  539.  Statutes  regulating  the  sub- 
ject of  joint  tenancy. 

540.  The  constitutionality  of  stat- 

utes abolishing  joint  ten- 
ancy. 

541.  The  characteristics  of  an  es- 

tate by  the  entirety. 

542.  The  creation  of  estates  by  the 

entirety  in  wills. 

543.  Devises  to  husband  and  wife 

as  tenants  in  common  with 
others. 

544  The  effect  of  statutes  abolish- 
ing joint  tenancy  on  es- 
tates by  the  entirety. 

545.  The  effect  of  statutes  regulat- 
ing the  property  status  of 
^  married  women  on  estates 

by  the  entirety. 


§  532.  Devises  in  joint  tenancy  and  tenancy  in  common 
distingnisluMl. —  Before  proceeding  to  consider  what  language 
in  a  Avill  will  create  a  joint  tenancy  and  what  will  create  a  ten- 
ancy in  common,  it  is  necessary  to  distinguish  tiiese  two  species 
of  tenure  from  one  another.  "  Tenants  in  common,"  says  Chan- 
cellor Kent,  '*arc  those  who  enjoy  unity  of  possession;  while 
they  may  hold  by  separate  and  distinct  titles,  or  by  one  title 
derived  at  the  same  time  under  the  same  will  or  descent.  Each 
lias  an  entire  and  distinct  interest  which  he  may  convey  as  if 
s^Mzed  of  the  .same  in  severalty."/  But  of  the  sc^veral  character- 
istics of  tenure,  namely,  po.ssession,  interest,  title,  and  time;  in 


»4  Kent,  pp.  307,  371;  2  Black.  Com.,  p.  lUi. 


700  LAW    01<-    WILLS.  [§  533. 

respect  to  tcnaiu-v  in  coimiion,  there  is  a  unity  among  the  ten- 
ants of  possession  alone,  witli  a  unity  of  title  in  case  of  a  devise, 
so  far  ;is  the  lu^^innini;-  of  the  tenancy  is  coneei-ned.  In  the 
case  of  a  tcnaiicv  in  I'onuiion,  created  otherwise  than  by  will, 
one  tenant  may  hold  by  descent,  as  from  A.,  his  father,  and  an- 
other may  hold  by  purchase  from  A.,  or  both  may  hold  from 
dilferent  *xrantors.  Again,  in  the  case  of  a  tenancy  in  common 
uniK'r  a  will,  one  tenant  may  hold  for  life  and  another  in  fee- 
si  mjile  or  fee-tail.^  Neither  one  of  the  tenants  can  say  of  any 
particular  portion  of  the  estate,  "  this  is  mine; "  for  the  [X)sses- 
sion  of  all  is  the  possession  of  each. 

^'either  can  one  bring  ejectment  against  the  otlicrs,  nor  dis- 
seize the  others.  At  common  law,  ])artition  among  tenants  in 
common  could  not  be  compelled.-  Jt  might  be  voluntarily 
matle  by  the  execution  of  mutual  deeds  of  conveyance ;  but  at  the 
present  time,  by  statute,  partition  may  be  had  by  compulsory 
})roceedings  brought  in  a  court  of  competent  jurisdiction.  As 
there  is  no  survivorship  in  tenancy  in  common,  any  tenant  may 
dispose  of  his  interest  either  by  deed  or  Avill.'  Tenancies  in 
common  may  be  created  either  by  descent  or  by  purchase.  Joint 
tenancy  is  invariably  the  result  of  the  act  of  the  parties  them- 
selves; never  of  the  application  of  any  principle  of  law.  The 
joint  tenants  enjoy  the  four  unities,  as  they  are  called ;  that  is, 
unity  of  interest,  title,  time  and  possession.*  In  other  words, 
they  have  one  and  the  same  interest,  accruing  in  one  and  the 
same  manner,  commencing  at  one  and  the  same  time,  and  held 
by  one  and  the  same  undivided  possession.  Upon  the  death  of 
one  tenant  his  share  does  not  go  to  his  heirs  or  next  of  kin,  nor 
can  he  dispose  of  it  by  w'ill,-^  but  to  the  surviving  joint  tenants. 
In  this  respect  it  will  be  seen  the  estate  differs  widely  from  ten- 
ancy in  common. 

§  533.  The  creation  of  joint  tenancy  at  common  law. —  At 
the  common  law  it  is  a  Avell-settled  rule  that  land  devised  to 
two  or  more  persons  simply,  without  any  exclusive,  restrictive 
or  ex})lanatory  language  by  which  they  arc  made  tenants  in 

1 2  Black.  Com  .  p.  101.  4  2  Black.  Com.,  p.  189. 

•^  By  statute  31  Hen.  VIII,  e.  1,  and  » Wilkins  v.  Young,  j44  lud.  1,  41 
32  Hen.  VIII,  c.  :{2,  it  may.  N.  E.  R  GS. 

^Snnmons  v.   Spratt,  26   Fla.  44'J, 
8  S.  Rep.  123. 


§  534.]  TEXAXCY    IN    COMMON    AND    JOINT    TENANCY.  TOl 

common^  shall  vest  in  them  as  joint  tenants,  whether  to  them 
individually  or  as  members  of  a  class.'  Thus,  where  a  devise 
is  to  A.  and  B.  and  their  heirs,  or  to  A.  and  B.  for  their  lives, 
and  after  their  death  to  their  heirs,  A.  and  B.  take  as  joint 
tenants,  and,  on  the  death  of  either,  the  property  goes  to  the 
other  for  life;  but  not  until  the  death  of  both  does  it  go  to  the 
heirs.  The  tendency  of  the  earlier  authorities,  for  feudal  rea- 
sons, was  to  favor  the  creation  of  joint  tenancies,-  and  the 
same  rule  Avhich  was  applied  to  a  devise  was  applied  to  gifts 
of  chattels  to  several  persons  simpliciter^  or  to  a  money  leg- 
acy. But  an  exception  to  this  rule  was  always  made  in  the 
case  of  a  devise  to  two  persons  who  are  husband  and  wife, 
who  were  regarded  by  the  law  not  as  distinct  persons,  but  as 
one,  and  who  hence  took  as  tenants  by  the  entirety.'* 

§  534.  Language  creating  tenancy  in  common  at  common 
law. —  Independently  of  statute,  it  usuail}^  requires  clear  ex- 
pressions by  the  testator  to  show  that  he  intended  that  devisees 
shall  take  as  tenants  in  common  and  not  as  joint  tenants. 
If,  therefore,  he  inserts  words  of  severance,  or  indicates  an 
intention  to  divide  equally,  or  to  partition,  or  uses  language 
which  expressly  or  by  necessary  implication  shows  that  he 
intends  a  tenancy  in  common,  the  presumption  in  favor  of 
joint  tenancy  would  be  removed.  Thus,  where  the  devise  was 
given,  equally  to  be  divided,^  or  in  etiual  moieties  to  A.  and  B., 
with  remainder  over,^  a  money  legacy  was  given  to  A.  and  B., 
each  80  m?^c7i,"  or  a  sum  is  to  be  divided  "  ^^n^fo  and  among'''* 
several  persons,*^  or  "between"  two  or  more,**  or  to  be  ])aid 

1  Parsons  v.  Boyd,  20  Ala.  (18.J2),  <  Freestone  v.  Parrot,  5  T.  R.  053; 

112;  Phelps  v.  Jepson,  1  Root  (Conn.,  Back  v.  Andrew,  2  Vern.  120;  Earle 

1789),  48;  Haniian  v.  Towers,  3  Har.  v.  Wood,  8  Cush.  430,  445;  Simpson 

&  J.  (Md.,  1810),  147,  149;  Webster  v.  v.  Batterman,  5  Cusli.  153,  loCi;  Til- 

Vandeventer,  0  Gray  (Mass.),  428, 431 ;  lingliast  v.  Cook,  9  Met.  143,  147. 

llardenljerf^li  v.  Ilardenberf^li,  10  N.  *2  Black.  Com.,  jj.  192. 

J.  L.  (1828),  42;  Purdy  v.  llayt,  92  « Harrison  v.  Foreman,  5  Vos.  200, 

N.   Y.   (1HH3),   440,  4.53;    Lorillard  v.  209. 

Coster,  T)  Paige  (N.  Y.),  228.  14  Wend.  '  Eales  v.  Earl  of  Cardi-uii,  <J  Sim. 

342;  Wiiite  v.  Sayre,  2  Oiiio  (1825),  384. 

103,    110;    Miles   v.    Fisher,    10   Ohio  H'aiiiphcll  v.  ( 'jimpl).'!!,  Mho.  C.  C. 

(1810),  1;  Cill-M!rt  v.   Richards,  7  Vt.  15;    Richardson    v.    Richanl.son,    14 

a08;  iJott   V.    Wilson,   1    liay  (S.   C,  Sim.  520,  528. 

1795),  4.57;  2  Bl.  Com.,  pp.  180,  189.  "  Laslihrook  v.  C(M)k.  2  Mor.  70;  At- 

^Salk.  392;  (>>.  Litt..  ,^  298.  toriicy-Conorul  v.  Fletcher,  1^  It.  13 

'Shc^ro  V.  BilliiiK'sIey,  1  Vern.  482;  Eq.  128,  130. 
Willing  V.  Baine,  3  I'.  W.  113,  111. 


702  LAW   OF   MILLS.  [§  535. 

"  equally," '  or  to  several  persons  respectively,^  or  to  be  paid 
to  each  of  the  rcspoctive  heirs  of  the  persons  mentioned,'  a 
tenanc'V  in  coiiinion  was  created.  And  modern  cases  decided 
sinri'  the  middle  of  the  eighteenth  century,  even  in  the  absence 
of  statute,  have  favored  the  creation  of  a  tenancy  in  common 
rather  than  a  joint  tenancy. 

§  535.  Aiiiericsin  doctrine  —  Tenancy  in  common  implied 
from  wonis  of  division  or  partition. —  In  America  the  courts, 
htui^-  prior  to  the  adoption  of  statutes  abolishing  survivorship, 
])ronounced  against  estates  in  joint  tenancy.  The  policy  of 
the  common  law  by  Avhich  joint  tenancy  was  favored,  in  the 
absence  of  express  language  creating  tenancy  in  common,  Avas 
based  upon  the  fact  that  the  division  of  the  tenure  I)y  multi- 
plying those  who  rendered  feudal  sei'viccs,  and  dividing  the 
rents  and  services,  tended  to  weaken  the  ellicacy  of  the  feudal 
system.^  JJut  when  feudal  tenures  were  abolished,  the  reason  for 
the  existence  of  survivorship  ceased.  And  Lord  Ilardwicke 
remarked  in  Ilaiocs  v.  JIaives,  1  "Wils.  1G5,  that,  in  his  opinion, 
even  the  courts  of  law  no  longer  favored  joint  tenancy,  and  so 
far  as  the  policy  of  equity  was  concerned  it  had  never  been 
favored.  As  early  as  the  time  of  Chancellor  Kent,^  statutes 
had  been  passed  in  many  of  the  states  of  the  American  Union 
by  which  estates  in  joint  tenancy  were  abolished  unless  ex- 
pressly created  by  deed  or  will.  In  Connecticut  the  odious 
and  unjust  doctrine  of  survivorship,  as  it  was  termed,  had  been 
repudiated  before  this.*^  And  generally  it  may  be  safely  said 
that  while  an  estate  in  jointtenancy  may  be  created  by  express 
language  in  a  will,  yet  the  creation  of  such  estates  is  at  present 
tliscouraged  by  the  law,''  Irrespective  of  statute  it  is  the  mod- 
ern rule  of  construction  that  any  language  in  a  will,  showing 
an  intention  on  the  part  of  the  testator  that  there  shall  be 
a  division  hi  equal  shcwes^  will  create  a  tenancy  in  common. 
Thus,  where  the  testator  gave  land  equalhj  to  he  dimded^^  or  to 

1  "Walker  v.  Dewing,  8  Pick.  (Mass.)  cpji^lps  v.  Jepson,  1  Root  (Conn.), 

519.  4."):  Whittelsey  v.  Fuller,  11  Conn.  :340. 

•  Torrent  v.  Fnimpton,  Styles.  434;  "  Simons  v.  McLain,  51  Kan.  \h?j,  IGO. 

Folke,s  V.  Western,  9  Ves.  456,  4G0.  SGrigwold    v.    Johnson,    5    Conn. 

'  Gordon  v.  Atkinson,  1  De  Gex  &  (1824),  363;  West  v.  Rassman,  34  N.  E. 

Sniale,  478.  R.  991,  135  Ind.  278,  203;  Bowen  v. 

<  Fi.sher  v.  Wign;.  1  Salk.  391,  392.  Swander,  121  Ind.  164. 170,  23  N.  E.  R. 

5  4  Kent,  Com.  357;  1  Perry,  Trusts,  725;  Briscoe  v.  McKee.  2  J.  J.  Marsli. 

§  136.  (25  Ky.,  1829),  370 ;  Simmons  v.  Spratt, 


§§  536,  537.]       TENANCY    IN    COMMON    AND    JOINT   TENANCY.  703 


be  divided  "  share  and  share  aWke^"^  ^  or  where  land  is  to  be  dis- 
tributed as  a  common  stocl^-  a  tenancy  in  common  is  created. 
In  England  it  has  been  held  that  the  addition  of  words  of 
survivorship  to  a  gift  to  several  as  tenants  in  common  does 
not  of  necessity  make  it  a  joint  tenancy.  Thus,  a  gift  to  sev- 
eral "  share  and  share  alike,"  but  if  one  die  then  to  the  sur- 
vivor, was  held  to  mean  death  during  the  life-time  of  the 
testator.'  An  annuity  given  to  A.  and  B.,  each  so  much,  does 
not  become  a  joint  tenancy  because  it  is  stated  to  be  for  their 
lives  and  the  life  of  the  survivor.* 

§  536.  ^Vlieu  two  or  more  devisees  of  an  estate  tail  are 
tenants  in  common. —  The  rule  by  which  a  devise  to  A.  and 
B.  in  fee  creates  in  them  a  joint  tenancy  in  the  absence  of  stat- 
ute does  not  apply  to  a  devise  to  A.  and  B.  and  the  heirs  of 
their  bodies,  where  A.  and  B.  are  not  husband  and  wife  and 
cannot  become  such,  either  because  they  are  of  the  same  sex, 
or,  being  of  opposite  sexes,  because  they  are  within  the  prohib- 
ited degrees.  In  such  case  they  are  joint  tenants  for  life,  but 
tenants  in  common  by  necessity  in  respect  to  the  estate  tail.^ 

§  537.  Tenancy  in  common  by  a  devise  of  the  same  land  to 
two  or  more  in  fee. —  At  common  law  a  devise  in  one  portion 


26  Fla.  449  (1890',  8  S.  R  123;  Spencer 
V.  Chick,  76  Me.  347, 349;  In  re  Brown, 
86  Me.  572,  578;  Stetson  v.  Eastman, 
84  Me.  369;  Partridge  v.  Colgate,  3 
Harr.  &  McH.  (Md.,1793),  339;  Walker 
V.  Dewing,  8  Pick.  (25  Mass.)  519, 520; 
Bigelow  V.  Clapp,  106  Mass.  88,91; 
Emerson  v.  Cutler,  14  Pick.  (31  ]\rass.) 
108;  Farmer  v.  Kimball,  46  N.  H. 
435;  Bud  J  v.  Haines,  29  Atl.  R.  170, 
52  N.  J.  Eq.  488,  489;  Hill  v.  Spruill, 
3  Jone-s'  Eq.  (56  N.  C,  1857),  490;  Culp 
V.  Lee.  14  S.  E.  R.  74  (1891),  109  N.  C. 
675;  McMaster  v.  McMaster,  10  flratt. 
(Viu,  lb53),  275;  Warner  v.  Hone,  1 
Va{.  Ca-s.  Abr.  290,  pi.  10. 

•Watts  V.  Ciardy,  3  Fla.  (1848), 
869;  Lombard  v.  Boydcn,  5  Allen, 
249,  251;  Holl)rook  v.  Finny,  4  Mass. 
(1808),  507;  Nye  v.  Drake.  9  I'ick. 
(Mass.)  87;  Mi.lgett  v.  Midgett,  117 
N.  C.  8.  10,  23  H.  E.  R.  37;  Culp  v. 
I^KKJ,  109  N.  C.  075,  677;  Ham  ill  on  v. 
lioyle,  1  Brev.  (H.  C.  1801).  411.  419; 
Bunch   V.   Hurst,  3   Des.  (S.  C,  1811), 


Eq.  288;  Witmer  v.  Ebersole,  5  Pa, 
St.  (1846),  458;  Irwin  v.  Dunwoody, 
13  S.  Sc  R.  (Pa.)  61;  Heath  v.  Heath, 
2  Atk.  122;  Perry  v.  Woods,  3  Ves. 
204,  208,  n.;  Barker  v.  Giles  (1725),  3 
P.  W.  280,  283. 

2  Dickson  v.  Dickson,  70  N.  C.  487. 

3  Biudon  v.  Earl  of  Suirolk,  1  P.  W. 
90,  97.  And  so  of  a  gift  to  A.  and  B. 
with  a  limitation  to  the  survivor  in 
case  either  dies  without  issue.  Ryves 
V.  Ryves,  L.  R.  11  Eq.  539,  541;  Perry 
V.  Woods,  3  Ves.  204;  Ash  ford  v. 
Haines,  21   L.  J.  Ch.  496;  anti\  §  342. 

4  Jones  V.  Randall.  1  J.  &  W.  100; 
Eales  V.  Earl  of  Cardigan,  9  Sim. 
384.  A  direction  that  C.  should  par- 
ticipate in  a  gift  of  the  residue  to  A. 
jind  B.  makes  them  all  tenants  in 
common,  not  joint  tenants.  Robert- 
son V.  Eraser.  L.  R.  6  Ch.  09(5. 

»Co.  Litt.  184rj;  Litt.  283;  2  Black. 
Com.,  p.  191;  Huntley's  Case,  Dyer, 
:!20«. 


Ttl-i  LAW    OF    WILLS.  [§  538. 

of  a  "will  of  a  foe  in  land  to  A.,  and  in  a  subsequent  clause  a  de- 
vise of  the  fee  in  the  same  land  to  B.,  gave  A.  and  13,  the  land 
as  joint  tenants  in  fee,  for  in  no  other  way  could  these  two 
clauses  be  reconciled.  But  by  force  of  the  existing  American 
statutes  such  a  disposition  of  the  fee-simple  of  land  to  two  dif- 
ferent persons  in  separate  clauses  of  a  will  gives  them  the  land 
as  tenants  in  common,  each  taking  an  undivided  half.^ 

§  5.*JS.  Gifts  in  remainder  to  classes  as  joint  tenants. — 
The  general  rule  of  the  common  law,  that  a  gift  to  several 
makes  them  joint  tenants,  is  applicable  to  gifts  to  classes  as 
well  as  to  gifts  to  individuals.-  Thus,  where  the  matter  is  not 
regulated  by  statute,  and  where  there  arc  no  words  indicating 
a  severance  among  the  devisees,  in  the  case  of  a  bequest  to  chil- 
dren as  a  class  in  remainder,  or  an  executory  devise  after  a  life 
estate,  the  devisees  will  take  as  joint  tenants.'  This  is  the  rule 
irrespective  of  the  fact  that  the  interests  of  the  children  vest  in 
them  at  different  periods,  while  at  common  law  the  interests 
of  joint  tenants  must  vest  in  them  at  one  and  the  same  time.* 
Tor  in  the  case  of  a  future  estate  devised  to  children  as  a  class 
after  a  life  estate,  it  is  a  well-known  rule  that  the  property  will 
vest  in  such  of  the  children  as  are  living  at  the  death  of  the 
testator,  and  that  after-born  children  born  during  the  existence 
of  the  life  estate  will,  on  their  birth,  acquire  a  vested  right  to 
share  with  the  others  in  the  remainder.-^  And  Avhere  a  provis- 
ion of  a  future  estate  for  children  as  a  class  is  for  those  only 
who  survive  the  life  tenant,  those  who  predecease  him  are  ex- 
cluded. At  common  law  the  limitation  of  a  future  estate  on. 
such  conditions  would  have  made  all  the  children  tenants  in 
common.^  But  under  the  rules  of  equity  such  a  testamentary 
disposition  of  property  w^as  placed  upon  the  basis  of  a  convey- 
ance in  trust.  The  presumed  intent  of  the  creator  of  a  trust 
and  of  the  testator  to  create  a  joint  tenancy  was  permitted  to 
overcome  the  rule  of  the  common  law.  Thus,  where  land  was 
devised  to  A.  for  life,  remainder  to  B.  and  to  her  children  and 

1  Day  V.  Wallace,  144  HI.  256,  33  N.  (Del..  183G),  103;  Withy  v.  Mangles,  4 

R  R.  18.1.    The  cases  are  fully  cited  Beav.  358;  Wood  v.  Wood,  3  Hare,  65; 

ante,  §  360.  Gregory  v.  Smith,  9  Hare,  708. 

2Kuhn  V.  Webster,  12  Gray.  316;  3  Pos^,g  553. 

Gulp  V.  Lee,  14  S.  K  R.  74,  109  N.  C.  *  2  Black.  Com.,  p.  18L 

675;  West  v.  Rassman,  135  lud.  278,  ^  Post,  ^  558. 

34  N.  E.  R.  991;  Kean  v.  Roe,  2  Har.  6  Co.  Litt.  188a. 


§  539.]  TEXA>-CY    IX    COMMON    AND   JOINT   TENANCY.  705 

their  heirs,  the  court  held  that  B.  and  her  children  on  the  death 
of  the  testator  took  an  estate  in  joint  tenancy  in  fee,  including 
all  children  of  B.  born  during  A.'s  life,  and  the  objection  that 
the  estate  would  commence  at  different  times  was  ignored.^ 

§  539.  Statutes  regulating  the  subject  of  joint  tenancy. — 
In  many  of  the  states  statutes  exist  which  provide  that  every 
estate  given  by  will  or  conveyance  to  two  or  more  persons 
shall  be  construed  an  estate  in  common,  unless  it  is  expressed 
therein  that  the  devisees  or  grantees  shall  take  as  joint  tenants, 
or  by  some  similar  language.  In  other  states,  the  statutes, 
while  not  formulating  a  rule  of  construction,  expressly  abol- 
ish the  right  of  survivorship  among  joint  tenants,  and  declare 
that  joint  tenancy  shall  assimilate  to  tenancy  in  common.^ 
These  statutes  reverse  the  rule  or  presumption  of  the  common 
law  that  a  devise  or  a  bequest  to  two  or  more  persons  without 
explanatory  words  creates  a  joint  tenancy.  Under  these  stat- 
utes it  is  the  rule  that  a  bequest  to  two  or  more  without  re- 
strictive or  explanatory  language  is  to  be  construed  as  a  tenancy 
in  common,  unless  a  different  intention  on  the  j><-trt  of  the  testator 
is  indicated  hy  the  will.  If  the  will  is  altogether  silent,  the  stat- 
ute speaks  and  declares  that  such  a  gift  creates  a  tenancy  in 
common.' 

1  Gates  d.  Hatterley  v.  Jackson,  2  Ga,  40;  McRea  v.  Button,  95  Ga,  267, 
Stra.  1172;  Kansas  City  L.  Co.  v.  22  S.  E.  R.  149;  Wright  v.  Harris,  116 
Hill,  3  Pickle  (Tenn.),  589,  596,  11  S.  N.  C.  462,  21  S.  E.  R.  914;  Johnson  v. 
W.  R797.  Johnson,  128  Ind.  93.  96;   Heller  v. 

2  Hampton  v.  Wheeler,  99  N.  C.  222  Heller,  35  N.  E.  R.  798.  147  111.  621; 
(1888),  6  S.  E.  R.  266;  Bishop  v.  Mo-  Barclay  v.  Piatt,  170  111.  384,  387,  48 
Clellands  Ex'rs,  44  N.  J.  L.  450  (1882),  N.  E.  R  972;  Harrison  v.  Botts,  4  Bibb 
16  AtL  R.  1;  In  re  Kimberley,  150  (7  Ky.,  1815),  420;  Simons  v.  McLain, 
N.  Y.  90,  44  N.  K  R.  945;  Dana  v.  51  Kan.  153,  32  Pac.  R.  919;  Proctor 
Murray,  122  N.  Y.  (1890),  6(J4;  Braze-  v.  Smith,  8  Bush  (71  Ky.,  1871),  81,84; 
more  v.  Davis,  55  Ga.  (1875),  504;  Mil-  Annable  v.  Patch,  3  Pick.  160;  Ham- 
ler  V.  !Miller,  16  ilass.  59;  Simons  v.  ilton  v.  Pitcher,  53  Mo.  334;  Russell 
McLain,  51  Kan.  153,  32  Pac.  R.  919;  v.  Russell,  122  Mo.  Sup.  235,  26  S.  W. 
Harvey  v.  Harvey,  72  N.  C.  570;  Burj?-  R.  677;  Rodney  v.  Landreau,  104  Mo. 
hart  V.  Turner.  12  Pick.  (29  Mass.,  251;  Jones  v.  Jones,  13  N.  J.  Eq.  236. 
1832),  534:  Youn'g  v.  De  Bruld,  11  238;  Vrecland  v.  Van  Riper,  17  N.  J. 
Rich.  (S.  C.  1856).  L.  638;  Joluisou  v.  Eci.  133;  Bishop  v.  ,AIcCIelIand.  37 
Harris,  5  Hayw.  (6  Terui.)  113.  N.  J.  ?:<(.  k;;};  Maxwell  v.  Ui^gins, 

•Utz's  Estat*',  43  Cai.  (1872),  200,  38  Neb.  671,  57  N.  W.  R.  388;  Coster 

204;  Ijctnl  v.  Moore.  20  Conn.  (1849),  v.  I><)riilard.   14  Wend.  (N.  Y.,  1835). 

122,  126;  Morris  v.  Bolles,  31  Atl.  R.  342;  MofFilt  v.  Elmeiidorf.  152  N.  Y. 

638,05  Conn.  45;  iioylo  v.  Jones,  30  475,   16  .N.  11  lu  815;  In  ro  Muiiler'.s 

45 


Too  LAW    OF    WILLS.  [§  540. 

But  an  estate  may  be  devised  in  joint  tenancy.  Xor  is  it 
necessary  that  the  testator  should  use  the  words  "  joint  ten- 
ancy," if  he  shall  employ  language  clearly  expressing  an  in- 
tention to  create  a  joint  tenancy.^  Thus,  in  the  case  of  a  devise 
to  A.,  B.  anil  C,  and  to  the  survivor  and  the  heirs  of  the  sur- 
vivor,- or  to  A.  and  B.  and  the  longest  liver  of  them,^  a  joint 
tenancy  is  created.* 

ij  540.  Constitutionality  of  statutes  abolishinc:  joint  ton- 
aiK'.V. —  The  guai'autees  which  have  Ijeen  inserted  in  the  con- 
stitutions of  the  various  states,  protecting  vested  property 
rights  from  legislative  encroachment,  ami  the  prohibition  of 
the  passage  of  statutes  which  shall  have  a  retroactive  opera- 
tion, are  a]>plicable  to  statutes  which  have  been  passed  in  the 
various  states  abolishing  joint  tenancy,  or  changing  it  into  a 
tenancy  in  common.  Upon  general  principles  it  would  seem 
that  such  a  statute  passed  after  an  estate  has  vested  on  the  death 
of  the  testator  could  legally  have  no  reti'oactive  effect  upon  any 
interest  in  such  jiroperty.  But  in  Massachusetts  a  contrary 
view  has  been  held.  The  courts  of  that  state  have  determined 
that  these  statutes,  so  far  as  they  abolish  the  right  of  survi- 
vorship attached  to  a  joint  tenancy,  may  be  applied  to  vested 
estates,  as  they  give  the  tenant  who  dies  a  more  beneficial 
interest  than  he  enjoyed  at  the  common  law.     And,  on  the 

Will,  44  X.  Y.  S.  GOo;  Tompkins  v.  trust  for  several  children  to  continue 

Verplanck.  42  N.  Y.  S.  412:  Purdy  v.  until  the  death  of  all  of  them  makes 

Hayt.  'J2  N.  Y.  446.  454:  Dana  v.  Mur-  them  tenants  in  common,  and  on  the 

ray,  122  X.  Y.  604,  Glo;  In  re  Kimbex'-  death  of  one  of  them  during  the  trust 

ley's  Estate,  100  X.  Y.  90.  44  X.  E.  R.  his  share  .goes  to  his  estate.     Morris 

94o,  OS  X.   Y.   S.  399;   Hampton  v.  t.  BoUes,  31  Atl.  R.  538,  65  Conn.  45. 

Wlieeler,  99  X.  C.  222,  6  S.  E.  R.  230;  -iHannon  v.  Christopher,  34  N.  J. 

Silliman  v.  AVhitaker,  119  X.  C.  89. 93;  Eq.  459,  462. 

Sarjeant  v.  Steinberger.  2  Ohio  (1825),  *  Pierce  v.  Baker,  58  X.  H.  531. 

305;  Penn  v.  Cox,  16  Ohio  (1847),  30;  *And  in  one  case  it  was  held  that 

WiLson  V.  Fleming.  13  id.  68:  Sturm  whei-e    articles    of    little    intrinsic 

V.  Sawyer,  2  Pa.  Super.  Ct.  254,  38  W.  value  were  given  to  several  by  name 

X.  C.  536;  Cliurch  v.  Church,  23  Atl.  in  words  which  would  ordinarily  cre- 

R.  302,  15  R.  I.  38;  Cannon  v.  Apper-  ate  a  tenancy  in  common,  with  an 

son,  14  Lea  (82  Tenn.),  553.  evident  intention  to  keep  them  in 

1  Coster    v.    Lorillard,    14    Wend,  the  family,  a  joint  tenancy  would 

(X.   Y.)  340.      Tiie  use  of  negative  be  implied.     Gilbert  v.  Richards,  7 

words  showing  an  intention  not  to  Vt.  203;  Decamp  v.  Hall,  42  Vt.  83. 

create  a  tenancy  in  common  is  not  See  also  Anderson  v.  Parsons,  4  ]^Ie. 

necessary.    Coudert  v.  Earl.  45  X.  J.  480. 
Eq.  654,  18  AtL  R.  220.    A  deWse  in 


§§  541,  542.]    TENA2s"CY  IN  co:sniox  and  joint  tenancy.         TOT 

other  hand,  they  do  not  deprive  the  survivor  of  any  interest, 
for  he  may  defeat  the  joint  tenancy  in  his  life-tiine  by  convey- 
ing to  a  stranger,  or  suing  in  partition.^ 

.^  541.  The  characteristics  of  an  estate  hy  the  entirety. — 
Tenure  by  the  entirety  is  sui  generis.  It  is  based  solely  upon 
the  common-la^v  unity  of  husband  and  wife.  In  theory  there 
is  but  one  owner  of  the  estate.  jBoth  jmrties  to  the  marriage 
relation  are  proprietors  of  the  whole  estate  and  of  every  part  and 
parcel  of  it.  During  the  joint  lives  of  the  husband  and  wife 
it  is  wholly  in  the  control  of  the  former,  who  may  claim  its 
profits.  But  he  cannot  dispose  of  or  incumber  it  without  the 
consent  of  the  wife,-  and  it  is  always  subject  to  the  restriction 
that,  on  the  death  of  either,  the  whole  estate  goes  to  the  other. 
This  is  of  necessity ;  for,  as  the  estate  is  incapable  of  partition 
hv  either  the  husband  or  the  wife,  nothing  can  descend  to  the 
heirs  of  either.  On  the  death  of  either,  his  or  her  title  is  ex- 
tinguished, but  no  new  title  is  created.  Both  enjoy  the  legal 
title,  and  the  survivor  does  not  take  the  estate  from  the  one 
who  dies  as  a  new  acquisition,  but  continues  to  hold  under  the 
instrument  creating  the  estate.  The  interest  which  he  has 
is  simply  a  continuation  of  that  which  he  formerly  enjoyed, 
augmented  l)y  the  interest  of  his  deceased  joint  tenant;  or 
perhaps  we  may  say  more  correctly,  free  from  the  incuml)rance 
of  it.  On  the  death  of  the  survivor,  his  or  her  heirs  will  take 
the  fee  of  the  whole  estate,  to  the  exclusion  of  the  heii's  of  the 
other  tenant  who  died  first.*  As  has  been  noted,  unless  a  stat- 
ute permits  partition  at  common  law  an  estate  by  the  entirety 
cannot  be  partitioned.^ 

§  54'2.  The  creation  of  estates  by  the  entirety  in  wiils. — 
"Where  the  testator  gives  an  estate  inland  in  fee  to  a  man  and 
liis  wife,  they  will  take  as  tenants  by  the  entirety  at  common 
law.  For,  l)ecaus(?  of  the  comnnju-law  unit}'  of  husband  and 
wife,  they  cannot  take  either  as  joint  tenants  or  tenants  in 

1  Miller  v.  Miller.   10  Mass.  (1H19),  Cordis.  4  Allen  (80  :M!Is.s..  1802),  400. 

69,61.    See  alsrj  Willies  V.  Van  Voor-  47.").  C/.  Stilphen  v.  Stilplien.  0.")  N.  H. 

his,  l.-jGray  (SI  Mass.).  i:«>,  147;  Burg-  1'20.  2:j  Atl.  H.  79;  Dowling  v.  Salli- 

hardt  v.  Turner.  12  I'itk.  (29  Mass.)  otte.  S:}  :\Iieli.  181,  47  N.  W.  R.  225. 
5:J4,  r,39;  Annahle  v.  Patch,  -i  Pick.        -2  Black.  Com.,  p.  181. 
(20  Mass.)  :JOt),  ■W.i;    Holbrook  v.  Fin-        M.itt..  J5  00.".;  Co.  Litt.  1S7;  3  Vern. 

ney,  4  Mass.  (180H|.  r»00.  .VH;  Dunn  v.  12i);  2  Lev.  ;«>. 
Sargcaut,  101  Mass.  'Mii,  8  lU;  Clark  v.        *  See  cases  cited  in  uoto  2,  p.  70S. 


ros 


LAW    OF    -SVILLS. 


[§  542. 


common.  AVhcre  they  take  an  estate  by  the  entirety,  neither 
is  seized  of  the  moiety  of  the  estate,  but  both  are  seized  of  the 
entirety  ^v/'  tout,  and  not  per  nv/;  ^  and  the  consequence  of  this 
tenure  is,  that  neither  the  liusband  nor  the  wife  can  dispose  of 
or  incumber  i)art  of  the  estate  by  his  or  her  sejiarate  convey- 
ance without  the  consent  of  the  other;  and  on  the  death  of 
either  the  husband  or  the  wife  all  the  estate  devolves  upon  the 
survivor.-  It  is  not  necessary  that  the  will  should  in  terms 
describe  the  persons  to  whom  the  estate  is  given  as  husband 
and  wife.^  If  the  will  does  not  mention  the  marriage  relation 
as  existin<>-  between  them,  the  fact  that  it  does  exist  may  bo 
proved  by  parol  evidence.* 


12  Black.  Com.,  p.  181. 

2  Robinson  v.  Eagle,  29  Ark.  (1874), 
202;  Beggs  v.  Boggs,  54  Ga.  95,  97; 
Ahnond  v.  Bonnell,  76  111.  530,  540; 
Riggin  V.  Love,  72  III.  553;  Lxix  v. 
HofT,  47  111.  (1868),  425,  428;  Hulett  v. 
Inlow,  57  Ind.  (1870).  412.  414;  Arnold 
V.  Arnold.  30  Ind.  (1868).  305,  306; 
Davis  V.  Clark,  26  Ind.  (1866).  424, 428; 
Jones  V.  Chandler,  40  Ind.  588;  Simp- 
son V.  Pearson,  31  Ind.  (1869),  1 ;  Thorn- 
burg  V.  Wiggins.  34  N.  E.  R.  399.  135 
Ind.  178, 181;  Carver  v.  Smith,  90  Ind. 
215.  222;  McConnell  v.  Martin.  52  Ind. 
434.  436;  Hoffman  v.  Stigers,  28  Iowa 
(1869),  302,  307;  Moore  v.  Moore,  12 
B.  Mon.  (Ky.)  651;  Babbitt  v.  Scrog- 
gin,  1  Duv.  (62  Ky.,  1863),  272;  Hard- 
ing V.  Springer,  14  Me.  407,  408; 
Robinson's  Appeal,  88  Me.  17,  21; 
Greenlaw  v.  Greenlaw,  13  Me.  (1837), 
182, 186;  Wales  v.  Coffin,  13  Allen  (95 
:Mass.),  213, 215. 217;  Shaw  v.  Hearsay, 
5  Mass.  (1809),  521, 523 ;  Fox  v.  Fletcher, 
8  Mass.  274;  Abbott  v.  Abbott.  97 
Mass.  136;  Craft  v.  Wilcox,  4  Gill 
(Md.),  504:  Marburg  v.  Cole,  49  Md. 
402,  413;  Flading  v.  Ross.  58  Md.  13, 
24:  Jacobs  v.  Miller,  50  Mich.  119; 
Fisher  v.  Provin.  25  Mich.  (1872),  347; 
Wait  V.  Bovee,  35  Mich.  (1877).  425, 
428;  Thornton  v.  Exchange,  17  Mo. 
(1851),  221 ;  Kip  v.  Kip,  33  N.  J.  Eq. 
213;  Lee  v.  Zabriskie.  28  N.  J.  Eq. 
(1877),  422,  42S;  Thomas  v.  De  Baum, 


14  N.  J.  Eq.  37,  78,  80:  Den  v.  Gard- 
ner, 20  N.  J.  Law,  556,  562;  Allen  v, 
Tate,  58  iMiss.  585;  Oglesby  v.  Bing- 
ham, 13  S.  E.  R  852,  69  Miss.  795; 
Noblitt  V.  Beebe,  35  Pac.  R.  248,  23 
Oreg.  4;  In  re  Young's  Estate,  3  Pa. 
Dist.  R.  443;  French  v.  Mehan,  56  Fn. 
St.  286,  288;  In  re  Bramberry's  Es- 
tate, 27  Atl.  R.  405,  156  Pa.  St.  628, 
632,  33  W.  N.  C.  92;  Den  v.  Branson, 
5  Ired.  (N.  C.)  L.  426;  Hunter  v. 
Wiieeler,  99  N.  C.  222,  225;  Phillips 
V.  Hodges,  109  N.  C.  248:  Rogers  v. 
Benton.  5  Johns.  Ch.  (N.  Y.)  431 
Wright  v.  Sadler,  20  N.  Y.  320,  324 
Torrey  v.  Torrey,  14  N.  Y.  430,  432 
Jackson  v.  Stevens,  16  Johns.  (N.  Y.) 
110;  Ward  v.  Krumm,  54  How.  Pr. 
(N.  Y.)  95;  Stuckey  v.  Keefe,  26  Pa, 
St.  397,  401;  Georgia  C.  &  N.  Ry.  Co. 
V.  Scott,  30  S.  C.  34,  40,  16  S.  K  R. 
185;  id.  839;  McLeod  v.  Tarrant,  39 
S.  C.  271, 280, 17  S.  E.  R.773;  2  Bl.  Com., 
p.  182;  2  Kent,  Com.  132;  Brownson  v. 
Hull,  16  Vt.  309,  312;  Corinth  v. 
Emery,  63  Vt.  505,  22  Atl.  R.  618; 
Chambers  v.  Chambers,  23  S.  W.  R. 
67,  92  Tenn.  707;  Berrigan  v.  Flem- 
ing, 2  B.  J.  Lea  (Tenn.),  271 ;  Ketchum 
v.  Walsworth,  5  Wis.  95,  102. 

^Thornburg  v.  Wiggins,  135  Ind. 
178, 181.    See  cases  cited  in  note  2. 

*  The  law  does  not  annex  a  condi- 
tion to  an  estate  by  the  entirety  that 
each  of  the  grantees  shall  remain 


§§  543,  54:4-.]      TEXAN'CY    IX    Co.MMoX    AND    JOINT    TENANCY.  709 

§  'A'i.  Devises  to  liiisl)aii(l  and  wife  as  tenants  in  eonnnon 
with  others. — As  a  result  of  the  rule  of  construction  above 
explained,^  by  which  a  devise  to  husband  and  wife  makes  them 
tenants  by  entirety,  it  follows  that,  where  a  devise  is  to  them 
concurrently  with  others,  they  Avill  take  one  share  hetivecn  them? 
In  other  words,  if  land  is  devisfxl  to  A,  and  B.,  who  are  hus- 
band and  wife,  concurrently  with  C,  a  third  person,  one-half 
will  go  to  A.  and  B.  as  tenants  by  the  entirety,  and  the  other 
half  to  C.^  Xor  is  it  material  that  the  gift  is  to  the  husband 
and  wife  and  the  other  person  as  tenants  in  common,^  though 
this  circumstance  in  some  cases  has  been  regarded  as  showins: 
an  intention  on  the  part  of  the  testator  that  all  shall  take  as 
tenants  in  common  in  equal  shares.^ 

§  541.  The  effect  of  statntes  abolishing  joint  tenancy  on 
estates  by  the  entirety. —  It  is  generally  held  that  the  com- 
mon-law rules  of  construction  above  explained,  reo-ardino-  de- 
vises  to  husband  and  wife,^  are  not  abrogated  by  the  statutes 
which  have  abolished  survivorship  in  joint  tenancy,  or  which 
have  turned  joint  tenancy  into  tenancy  in  common,  or  which 
expressly  provide  that  a  grant  or  devise  to  two  or  more  per- 
son>,  without  an  express  direction  that  they  shall  take  as  joint 
tenants,  shall  create  a  tenancy  in  common.^  But  both  at  com- 
mon law,  and  now  of  course  undoubtedly  under  the  various 
statutes,  an  estate  may  be  created  in  the  husband  and  wife  bv 
express  words,  or  by  necessary  implication,  which  shall  not  be 
an  estate  by  the  entirety,  but  which  shall  be  an  estate  either 
in  tenancy  in  common  or  in  joint  tenancy.* 

faithful  to  the   obligations  of  the  •'See§o43. 

viarriage  state,  or»that  the  violation  ^  Hoffman  v.  Stigers,  28  Iowa  (18G9), 

of  sucli   condition,  judicially  deter-  302,  300;    Marburg  v.   Cole,  49  Md. 

mined  in  divorce  proceedings,  shall  (1878),  402:  Nonuuu  v.  Abbot,  12  Mass. 

vest  the  wljole  estate  in  the  innocent  (1815).  474;  Shaw  v.  Hearsay,  5  ^lass. 

party.     Steltz  v.  Slireck,  28  N.  E.  K.  521;   Dowling  v.  Salliotte,  83   Mich. 

510,  128  N.  Y.  203.  (1890),  131,  134;  Jackson  v.  Stevens, 

1  See  .^  r,4-,>.  1(5   Jolms.   (N.   Y.)   11.",;    Phillips   v. 

2Hulett  v.  InloNv.  57  Iiid.  412,  414.  Hodges,  13  S.  E.  R  709.  109  N.  C.  248; 

'Ltiwin  V.  Cox,  Moore  "iriS.  pi.  759;  Branil)erry's  Estate,  150  Pa.  St.  028, 

Co.  Lit.  17«;  Litt..  ,^5  291;  Bricker  v.  032;  Stuckey  v.Keefe.20Pa.St.  (1850), 

^VIlatl.•y,  1  Vern.  233.  307;  Thomas  v.  De  Baum.  3  Lea  (70 

«  W  arington  v.  Warington,  2  Han;,  Tcnn.),  271.    See  cases  cited  in  note  2, 

54.  p.  7  ns. 

*Le\vin  v.  C«jx.  Mriore,  558;  Paine  n'<»>|M'r  v.  Cooper,  70  111.  (1875),  57, 

V.  Wagner,  12  SiuL  18-L  01;   Bardun   v.  Uvermeyur,  134  hid. 


71  •>  LAW    OF    WILLS.  [§  545. 

>^  7A7).  KtlVct  of  statutes  reu;ulatiiii!:  the  proixM'ty  status 
of  luarrii'd  women  on  estates  by  entirety. —  As  ivgaids  the 
etFect  of  the  statutorv  leg'isUition,  by  which  tlie  wife  is  now 
secured  in  the  enjoyment  of  the  legal  interest  in  her  property 
without  the  intervention  of  trustees,  and  without  the  creation 
of  a  separate  use  or  trust,  free  from  the  control  or  interference 
of  the  liusband.  on  estates  by  the  entirety,  two  views  are  Iield. 
In  most  cases,  in  the  absence  of  any  provision  to  the  contrary, 
such  statutes  are  not  regarded  as  destroying  the  unity  of  hus- 
band and  wife,  under  the  rule  that  a  devise  to  them  siiall  create 
an  estate  by  the  entirety.^  But  other  authorities  hold  that,  in 
so  far  as  the  sole  reason  for  the  existence  of  such  a  description 
of  tenure  was  the  assumed  unity  of  husband  and  wife  at  the 
common  law,  when  such  unity  may  be  assumed  to  be  abolished 
by  the  modern  statutes,  which  secure  the  legal  identity  and 
property  rights  of  a  married  woman  to  her  as  though  she  were 
a  single  woman,  that  the  estate  by  the  entirety  ought  to  be 
regarded  as  abolished.  Viewing  this  estate  as  based  upon  an 
irrational  and  al.)surd  legal  fiction  Avhicli  no  longer  exists,  and 
as  the  outgrowth  of  social  conditions  which  have  long  since 
disappeared,  these  authorities,  even  if  the  statute  is  silent,  have 
considered  this  species  of  tenure  as  abolished.  In  such  states, 
therefore,  a  devise  to  a  husband  and  wife  will  be  taken  as  a 
tenancy  in  common,  unless  the  testator  shall  manifest  an  inten- 
tion that  they  shall  take  as  tenants  by  the  entirety .'- 

(1S93),  660,  34  N.  E.  R.  439;  Thornburg  •  Stilplien  v.  Stilplien,  23  Atl.  R.  79, 
T.  Wiggins,  135  Ind.  178,  34  N.  E.  R.  Go  N.  H.  126;  Bowling  v.  Salliotte,  47 
999:  Phelps  V.  Simons,  34  N.  E.  R.  657  N.  W,  R.  225,  83  Mich.  131:  In  re 
(1893),  159  Mass.  415:  Bertlesv.Nunan,  Brambeny's  Estate,  27  AtL  R.  405, 
92  N.  Y.  152.  followed  in  Jooss  v.  Fey,  156  Pa.  St  628,  33  W.  N.  C.  92;  Jooss 
29  N.  E.  R.  136.  129  N.  Y.  17.  Thus,  it  v.  Fey,  129  N.  Y.  17.  29  N.  E.  R.  136; 
has  been  held  in  New  York  that  a  Hiles  v.  Fisher.  67  Hun,  229;  Thorn- 
devise  to  the  son  of  the  testator  and  burg  v.  AViggins,  135  Ind.  178,  180. 
liis  wife  of  the  use  of  a  farn\  for  their  -Whittlesey  v.  Fuller,  11  Conn, 
benefit  and  support,  during  their  (1836),  337;  Cooper  v.  Cooper,  76  111. 
natural  lives,  creates  in  them  an  es-  57;  Hoffman  v.  Stigers,  28  Iowa  (1870), 
tate  in  common,  since  otherwise  the  302;  Clark  v.  Clark,  56  N.  H.  105; 
evident  intention  of  the  testator  to  Wilson  v.  Fleming,  13  Ohio  (1844),  68; 
provide  for  the  support  of  the  wife  Robinson's  Appeal,  88  Me.  17,  24. 
would  Ije  in  danger  of  defeat.  Miner 
V.  Brown.  31  N.  E.  R.  24, 133  X.  Y.  308. 


CHAPTER  XXY. 


GIFTS  BY  WILL  TO  CHILDREN  AS  PURCHASERS. 


546.  "Whether  "  children  "  is  a  word 

of  purchase  or  of  limitation. 

547.  Extension  of  the  meaning  of 

the  word  "children." 

548.  Bequests  and  devises  to  "chil- 

dren "  as  purchasers. —  Pri- 
mary meaning  of  the  word. 

549.  The  word  '•  children  "  does  not 

presumptively  include  step- 
children. 

550.  The  status  of  an  adopted  child. 

"When  it  inherits  as  heir  or 
issue. 

551.  Gifts  to  children  include  those 

of  different  marriages. 

552.  Gifts  to  children  living  at  the 

execution  of  the  will. 

553.  "When  the  class  is  to  be  ascer- 

tained in  the  case  of  imme- 
diate gifts  to  children. 

554.  Devises  to  children  where  dis- 

tribution is  to  be  at  majority. 

555.  Construction  of  a  clause  di- 

recting distribution  when 
the  j'oungest  child  shall  at- 
tain the  age  of  twenty-one. 

556.  Testimony  to  prove   the  age 

of  a  legatee. 

557.  The  operation  of  the   words 

••living,"'  "then  living,"  and 
"sui*\'iving."'  in  determining 
when  class  of  children  is  to 
be  ascertained. 


558.  "When  children  as  a  class  are 

to  be  ascertained  in  the  case 
of  a  remainder. 

559.  Gifts  to  children  born  or  to 

be  born. 

560.  Distribution    amongst    chil- 

dren, when  to  be  jjer  capita. 

501.  Direction  for  an  equality  of 

division  favors  distribution 
2wr  capita. 

502.  "Wiiether   the    distribution 

amongst  the  children  of  sev- 
eral persons  shall  be  per 
stirpes  ov  per  capita. 

563.  "Where  children  take  by  sub- 

stitution the  distribution 
will  be  per  stirp>es. 

564.  Mode    of  distribution  where 

the  devise  is  to  individuals 
and  the  children  of  another. 

565.  Erroneous  statement    of  the 

number  of  cliildren. 

566.  Consfructiou  of  provision  for 

a  devise  over  in  case  legatee 
dies  without  children. 

567.  Children  en  t'eutre  sa  mere. 
508.  Presumption  of  legitimacy  — 

Character  of  proof  of  illegit- 
imacy of  legatee. 
569.  Comi)etency   of    husband    or 
wife  to  prove  legitimacy. 


§  54G.  ^Vliotlicr  *' childnir*  is  ;i  word  of  imrcluiso  or  of 
liiiiitiitioii. —  Tlio  word  "cliildren,"  wluii  it  is  used  in  its  nat- 
ural Sfiisc  in  a  will,  is  ecjuivalcn^t  to  imnicdiate  issue,  exclusivo 
of  grandchildr«'n  or  other  remote  issue,  ;ind  it  is  then  usually 
a  word  of  jturchase,  and  not  of  liinilation.'  A  coinuion  exam- 
ple of  tliis  is  to  lie  loun<l  in  a  <levise  to  .V.  for  life,  and  on  his 
I  i'f.  iiost,  i,  579  et  se(i. 


712  LAW    OF    WILLS.  [§  547. 

death  to  liis  cliildivn.  Tlero  A.  will  take  a  life  estate,  with  a 
vesttnl  iviiiaiiuU'r  in  those  of  his  chiltlrcn,  as  a  class,  who  are 
living  at  the  testator's  death,  wiiich  will  open  and  let  in  after- 
born  chikh'en.'  If,  however,  the  ])roi)erty  is  given  io  xV.  and 
his  chihlren,  si inpJ tetter^  and  at  the  death  of  the  testator //<?  has 
no  chihh'i'H,  the  word  "children"  will  be  taken  as  a  word  of 
limitation,  and  A.  will  take  an  estate  in  fee-tail,  Avhich  will  be 
turned  into  a  fee-simple  by  the  statutes,  and  wiiich  will  not 
l)e  divested  by  the  birth  of  children.'-'  Coupling  the  word 
"children"  with  "descendants"  may  indicate  that  the  former 
word  is  a  word  of  limitation,  and  not  of  purchase,  and  the  par- 
ent will  then  take  a  fee,  and  the  children,  if  any,  will  take  by 
descent.^ 

§  547.  Extension  of  the  nioanini;  of  the  word  ^^  children." 
The  word  "children,"  as  has  been  stated,'*  does  not  ordinarily 
include  grandchildren,  or  more  remote  issue.  It  is  confined  to 
immediate  descendants  in  the  first  degree.  But  the  word  may 
be  construed  to  comprise  grandchildren,  and  even  more  remote 
descendants,  where  there  are  no  persons  in  existence,  at  the 
makin"-  of  the  will,  w^ho  would  answer  to  the  meaning  of  the 
word  in  its  primary  sense,  or  where  there  could  not  be  any 
such  at  the  time  of  the  death  of  the  testator,  or  at  the  date  of 
a  future  event,  on  the  happening  of  which  the  estate  is  to  vest. 
For  example,  if  the  testator  shall  provide  for  the  children  of 
A.,  who  is  deceased  at  the  date  of  the  execution  of  the  will,  hav- 
ing left  him  surviving  no  children,  but  having  left  grandchil- 
dren, or  other  more  remote  descendants,  it  will  be  presumed  that 
the  testator  intended  that  the  grandchildren,  and  other  de- 
scendants of  deceased  children,  shall  take  as  children.'    The 

1  Beacroft  v.  Strawn,  67  111.  (1873),  v.  Crawford.  77  Fed.  R.  lOG,  8  L.  R.  A. 

28;  Ridgeway  v.  Lanpliear,  99  Ind.  740. 

201,  2.j7;  In  re  Sanders,  4  Paige  (N.Y.,  2  Lofton  v.  Murchison,  80  Ga.  391 

1844),  293;   In  re  Peale's  Estate.  31  (1888 1,  7  S.  E.  R.  322;  Hood  v.  Daw- 

W.  N.  C.  551;  Seybert  v.  Hibbert.  5  son  (Ky.,  1896',  33  S.  W.  R.  75;  Chrys- 

Pa.  Super.  Ct.  53*7,  41  W.  N.  C.  85;  tie  v.  Phyfe,  19  N.  Y.  (1859).  344,  353; 

Jones  V.  Cable,  114  Pa.  St.  (1886),  486,  Wild's  Case,  6  Rep.  17;  Silliman  v. 

7  Atl.  R  791;  AtTolter  v.  May.  115  Whitaker.  119N.  C.  89,  25S.  E.  R  752; 

Pa.  St.  54  (1887),  8  Atl.  R  20;  Appeal  posf,  §  579. 

of  Keim.  17  Atl.  R.  463,  125  Pa.  St.  s^Iason  v.  Amnion,  11  Atl.  R.  449, 

480,  24  W.  X.  C.  135:  In  re  Giffins  117  Pa.  St.  127.     Cf. post,  §  663. 

Estate.  22  Atl.  R  91. 138  Pa.  St.  (1890),  *  %  546. 

327;  Anderson  v.  Anderson.  30  AtL  SRiioton    v.   Blevin,   99    CaL   649; 

R.  304,  164  Pa.  St.  328;  Forest  Oil  Co.  Ewiug  v.  Handley,  4  Litt.  (14  Ky., 


§  54:7.]  GIFTS   TO    CHILDKEX   AS   PURCHASERS.  •    T13 

circumstances  of  the  testator's  family,  or  of  the  family  of  the 
person  who  is  named  as  parent,  may  be  proved  by  parol,  and 
are  always  to  be  considered.  Such  circumstances  may  present 
a  very  strong  case  for  extending  the  signification  of  the  word 
"  children,"  where  they  show  there  are  no  children  living,  for 
then  the  provision  would  be  inoperative.  This  rule  of  construc- 
tion is  not  applied  where  the  parent  is  alive  at  the  date  of  the 
will,  for,  though  he  has  no  children  then,  he  may  have  chil- 
dren born  subsequently  to  the  execution  of  the  will. 

Again,  the  word  will  have  a  wide  signification  where,  from 
the  context,  it  is  apparent  that  the  testator  used  the  word  "  chil- 
dren "  in  other  portions  of  his  will  than  the  one  in  question  as 
synonymous  with  "descendants  "  or  '•  issue."  For  the  question 
always  is,  not  so  much  the  primary  meaning  of  this  or  any 
word,  as  what  the  testator  meant  by  his  use  of  it.^  Hence,  if 
the  testator  has  expressly  provided  for  the  substitution  of  "  chil- 
dren" in  the  place  of  their  deceased  parents;  as,  for  example, 
where  he  provides  that,  in  a  gift  to  children,  the  issue  or  chil- 
dren of  any  legatee  who  is  deceased  shall  take  their  parent's 
share ;  -  or,  where  the  devise  is  to  be  equally  divided  among 
children  at  a  future  date,  and  those  who  may  be  legally  enti- 
tled thereto,  with  a  provision  that  if  any  of  the  children  or 
their  successors  should  dispute  the  will  the  legacy  was  to  be 
forfeited,  the  grandchildren  will  take.' 

1823),  340,  349;  Mowatt  v.  Carow,  7  386,  390;  Douglas  v.  James.  28  AtL 

Paige  (N.  Y..  1838),  328;  Prowitt  v.  R  (Vt.)  319;   Parkman  v.  Bowdoin, 

Ro.linan,  37  N.  Y.  42;  la  re  Sinitli,  1  Sunin.  C,   C.   359;  Lilliebridge  v. 

L.  R.  3.J  Ch.  D.  553,  558.  50  L.  J.  Ch.  Adie,  1  Mason,  C.  C.  (1817),  224;  In  re 

771.  50  L.T.  (N.  S.)878,  35  W.  R.  003;  Patton,   111    N.    Y.   487;    Sarver   v. 

In  re  Scliedel,  73  CaL  594,  15  Pac.  R.  Berndt,  10  Pa.  St.  213. 
297;   B.-rry  V.  Berry.  3   Giff.   134,   9        -  Long  v.  Labor,  8  Pa.  St.  231 ;  anfe, 

AVkly.   R.   889;    Feun   v.   Deatli,   23  g  353. 

Beav.  73.  3  In  re  Patton.  101  N.  Y.  480,  18  X. 

iWaddell  V.  Leonard.  .53  Ga,  097;  E.  R.  025.     A  power  to  devise  to  cliil- 

Osgood  V.  Levering,  33  Me.  401,  409;  dren  may  be  exercised  in   favor  of 

Lie  V.  Ide.  5  Mas.s.  (1809).  500:  Bow-  grandcliiidren  whose  parents  are  de- 

ker  V.  Bowker,  148  Mas.s.  203;  Edg-  ceased,  where  it  was  clearly  the  in- 

erly  v.  Bark<M-.  00  N.  IL  (1M91).  434,  tention  of  the  donor  of  tlio  jjower 

4*0;  In  re  Bnjwn,  29  Hui),  417;  In  re  tliat  tlie   jjarents,   if  they  had  sur- 

Patton,  41   Hun,  497;  I^^gan's  Will,  vived,  would  have  taken  a  fee.    Tiior- 

1:51  N.  Y.  450,  30  N.  H.  11  4m5;  MrKee-  ington  v.  Hale  (Ala.,   1897),  21   S.  R. 

Iian  V.  Wilson.  5:5   Pa.   St.  (1800),  74,  335;  C'h»Miault   v.   Chenault,  88    Ky. 

77;  Uricha  Ai.i>eul,  bO  Pa.  St.  (1878),  83,  II  S.  W.  R.  424.     C/.  yost,  §  803. 


14 


LAW    OF    WILLS. 


[§  54S. 


§  54S.  Beciucsts  ami  devises  to  children  as  purchasers  — 
Priiiiary  nieaiiiiii!:  ol'  the  word. —  Tlie  word  "children"  in  its 
priiuai'V  iiifaninn'  is  limitiHl  lo  ck'scendants  in  the  iirst  degree, 
i.  e.,  the  iimiiediate  issue  or  offspring  of  the  parent.  This  is 
the  teehnieal  anil  legal  signilication  of  the  term,  agreeing  with 
its  ordinarv  sense,  and,  in  the  absence  of  a  clear  indication  of 
a  contrary  intention  in  the  context,  it  must  be  taken  in  this 
sense  and  not  as  including  grandchildren.^  And  it  will  require 
exj^ress  words,  or  very  strong  and  necessary  implication  aris- 
ing from  the  will  itself,  to  show  that  the  testator  intended  to 
include  grandchildren  in  a  gift  to  children  sinqfllcitei'}     In- 


1  Ante.  %  547. 

2McGuive  v.  "Westnioreland,  36 
Ala.  594;  Willis  v.  Jenkins,  30  Ga. 
107,  IGl);  Walker  v.  Williamson,  25 
G;u  549;  White  v.  Rowland,  67  Ga. 
554;  Pugh  v.  Pugh.  105  Ind.  552,  555: 
West  V.  Passman,  135  Ind.  278,  296; 
Yeates  v.  Gill,  9  B.  Mon.  (4y  Ky.,  1848), 
203;  Churchill  v.  Churchill,  3  Mete. 
(59  Ky.,  1859),  466;  Sheets  v.  Grubbs,  4 
Mete.  (61  Ky.)  339.340;  Phillips  v.  Beall, 
9  Dana  (39  Kj'.,  1839),  14;  Wharton  v. 
Silliman.  22  La.  Ann.  343;  McLeod  v. 
Dell,  9  Fla,  443;  Osgood  v.  Lovering, 
33  Me.  464.  469;  Demill  v.  Reid,  71 
Md.  175,  17  Atl.  R.  1014;  Taylor  v. 
Watson,  35  Md.  519,  523;  Houghton 
V.  Kendall,  7  Allen,  72,  77;  Thomson 
V.  Ludington,  104  Mass.  193;  Ward  v. 
Cooper,  69  3Iiss.  789,  13  S.  R.  827; 
Edgerly  v.  Barker,  66  N.  H.  434,  450, 
31  Atl.  R.  900;  P'eit's  Exr  v.  Vanatta, 
21  N.  J.  Eq.  84. 85;  Jackson  v.  Staats, 
11  Johns.  (N.  Y.)  337;  Mowatt  v. 
Carow,  7  Paige  (N.  Y.),  328,  329;  Law- 
rence v.  Hebbard,  1  Bradf.  252; 
Stires  v.  Van  Rensselaer,  2  Bradf.  172; 
Hone  V.  Van  Schaick,  3  N.  Y.  (1850), 
538;  Low  v.  Harmony,  72  N.  Y.  408. 
413;  Marsh  v.  Hague,  1  Edw;  Ch.  (N. 
Y.,  1831),  174,  186:  In  re  Logan's  Es- 
tate, 30  N.  E.  R.  485,  131  N.  Y.  456, 
460;  Tier  v.  Pennell,  1  Edw.  Ch.  354; 
Shannon  v.  Pickell,  8  N.  Y.  S.  584,  55 
Hun,  127;  In  re  Potters  Estate.  24  N. 
Y.  S.  586,  71   Hun,  77;  Gregory  v. 


Beasley,  1  Ired.  (36  N.  C,  1841),  Eq. 
25;  Denny  v.  Closse,  4  Ired.  Eq.  (39 
N.  C.)  102:  Ward  v.  Sutton,  5  Ired. 
Eq.  (40  N.  C.)  421;  IMordecal  v.  Boy- 
Ian,  6  Jones  Eq.  (55  N.  C,  1854),  365; 
Sinton  v.  Boyd,  19  Ohio  St.  30;  Hough 
V.  Hough.  4'  Rawle  (Pa.),  363;  Dick- 
inson V.  Lee,  4  Watts  (Pa.,  1835).  82; 
Hallowell  v.  Phipps,  2  Whart.  (Pa., 
1837),  376.  380;  Gross'  Estate,  10  Pa. 
St.  361;  Herr's  Estate,  26  Pa.  St.  467; 
Gable's  Appeals,  40  Pa.  St.  231.  236; 
jMcKeehan  v.  Wilson,  53  Pa.  St.  74, 
77;  Castner's  Appeal,  88  Pa.  St.  478, 
484;  Tillinghast  v.  D'Wolf.  8  R.  L 
(1865),  69,  72;  In  re  Reynolds,  39  Atl. 
R.  896  (R.  L,  1898);  Ruff  v.  Rutherford. 
1  Bailey  Eq.  (S.  C,  1830),  7;  Shanks  v. 
Mills,  25  S.  C.  358;  Brabham  v.  Cros- 
land,  25  S.  C.  525;  Smith  v.  Smith, 
24  S.  C.  304;  Snoddy  v.  Snoddy. 
1  Strobh.  Eq.  (S.  C,  1846),  84,  87: 
Izard  V.  Izard,  2  Des.  Eq.  (S.  C.)  303, 
308;  Morton  v.  Morton,  2  Swan  (32 
Tenn.,  1853),  318,  320;  Booker  v. 
Booker,  5  Humiih.  (24  Tenn..  1844), 
505;  Turner  v.  Ivie.  5  Heisk.  (52  Tenn., 
1871).  222,  230;  Tebbs  v.  Duval,  17 
Gratt.  (Va..  1867),  349;  :Moon  v.  Stone, 
19  Gratt.  (Va.,  1870),  130;  Hudson  v. 
Hudson,  6  Munf.  (Va.,  1818),  352; 
Morris  v.  Owen,  2  Call  (Va.,  1801), 
520;  Graham  v.  Graham,  4  W.  Va. 
323;  Loring  v.  Thomas,  2  Dr.  &  Sm. 
497:  Holland  v.  Wood,  L.  R.  11  Eq. 
01,  96;    In  re  Kirk,  52  L.  T.  (N.  S.J 


§  o4S.] 


GIFTS   TO   CHILDREN    AS   PUECHASERS. 


715 


deed  it  would  se(Mn  from  some  of  the  authorities  that  grand- 
chiidreu  will  only  be  permitted  to  take  under  a  gift  to  children 
where  some  of  the  provisioi^s  of  the  will  would  otherwise  be  in- 
operative.' The  circumstance  that  the  testator  has  employed  the 
words  ''children"  and  "grandchildren''  in  the  same  clause  shows 
that  he  does  not  intend  to  include  grandchildren  in  a  devise  to 
children.-  The  general  rule  is  applicable  to  a  devise  to  chil- 
dren a^  a  dass,  their  heirs  and  assigns,  equalli/,  for  these  added 
Avords  are  merely  words  of  limitation,  and  do  not  give  an 
estate  to  the  grandchildren.*  Xor  does  the  fact  that  all  the 
children  are  named  in  connection  with  a  devise  to  children 
living  at  a  future  date  extend  the  meaning  of  the  word  so  as 
to  include  the  issue  of  any  children  who  have  died  before  the 
time  of  distribution.  The  word '"grandchildren '' in  its  pri- 
mary meaning  signilies  the  children  of  children,  that  is,  lineal 
descendants  in  the  second  degree,  and  it  usually  will  not  be 
construed  to  include  great-grandchildren,  unless  an  express  or 
implied  intention  to  that  effect  shall  appear  from  the  "will.*  If, 
however,  the  testator  has  used  the  word  "  grandchildren  "  in 
any  portion  of  his  will  to  indicate  a  great-grandchild,  it  may  be 


540;  Powell  v.  Powell,  28  L.  T.  (N.  S.) 
7:^0:  Radcliflfe  v.  Buckley,  10  Yes. 
15J.J,  108;  Moor  v.  Raisbecic.  12  Sim. 
123;  Earl  of  Oxford  v.  Churchill,  3 
Ves.  &  B.  59;  In  re  Ortons  Trusts, 
10  L.  T.  (N.  S.)  140,  L.  R.  3  Eq.  375: 
Reeves  v.  Brymer,  4  Ves.  092;  Bowen 
V.  Lewis,  L.  R.  9  App.  .890:  Crooke 
V.  Brookeing,  2  Vern.  100;  Hussey  v. 
Dillon,  Amb.  003,  2  Eden.  194.  The 
ileclarations  of  tlie  testator  are  not 
receivable  to  sliow  tliat  by  the  word 
"children"  he  meant  grandchildren 
or  otlier  is.sue,  or  that  he  meant  to 
inclu<le  stef)-ciiildren  or  illegitimate 
children.  But  the  circumstances  of 
the  testator's  family,  or  of  the  fam- 
ily of  the  jHTson  nanuMl  as  tiie  par- 
ent of  the  childnMi,  are  always  ad- 
missible and  may  be  j)rov«'d  by  parol. 
Willi.s  v.  Jenkins.  30  Ca.  109:  Morde- 
cai  V.  lioylan,  (i  .Jom-s  Kq.  (59  N.  C.) 
305. 

'  ReevcH  v.  BiyinLT,  4  NCs.  092.     A 


power  of  appointment  among  chil- 
dren is  not  validly  executed  by  a 
devise  which  includes  grandchildren. 
Cruse  v.  McKee.  2  Head,  1;  Snoddy 
v.  Snodd}-,  1  Strobh.  (S.  C.)  84,  87; 
post.  %  803. 

-'Tillingliast  v.  D'Wolf.  8  R.  I.  09, 
72.  Cf.  Brabham  v.  Crosland,  25  S.  C. 
525. 

3  Dickinson  v.  Lee,  4  "Watts  (Pa., 
1835),  82,  83.  But  compare,  conlra. 
Bonds  Appeals,  31  Conn.  (1802),  183; 
Sarver  v.  Berndt,  10  Pa.  St.  (1849), 
213,  where  the  devise  was  to  "chil- 
dren and  their  heirs  in  ecjual  shares," 
and  the  court  construed  the  word 
"  heirs  "  as  a  word  of  purchase  mean- 
ing grandchildren.  See  as  to  the 
meaning  of  the  word  "  heirs,"  ^000. 

*  Hragg  V.  Carter,  50  N.  E.  R.  (Mass., 
ISllh),  (ilO;  Yeates  v.  (Jill,  9  B.  Mon. 
(4S  Ky..  IHIS),  203.  204;  iKx.ling  v. 
Ih.bl.s.  5  llarr.  (iK'l..  1853),  405. 


TIG  LAW    OF    WILLS.  [§  549. 

pivsuincd  that  lio  lias  ust'd  it  to  indicate  such  person  in  the 
chiuse  un(hM'  consiiUM-ation.^ 

^  ^iV.).  The  won!  "  tliildron  "  does  not  presumptively  iii- 
elinle  step-children. —  Under  the  general  rule  of  construction 
tiiat,  wiiere  relations  of  any  class  are  mentioned  in  a  will,  rela- 
tions bv  consaniiuinity  only  are />?'/y«^i/t/c/e  presumed  to  be 
intendinl,  step-chiUlren  are  not  entitled  under  a  devise  to  chil- 
dren.-' I'liis  presumption  is  greatly  strengthened  if  the  tes- 
tator gives  a  legacy  to  his  st^'j^cJiihh'eii  as  such}  But  it  may 
aj)i)('ar  from  the  language  of  the  will  itself,  or  from  the  evi- 
dence of  the  surrounding  circumstances,  that  the  testator  meant 
to  include  his  step-children  in  a  provision  for  his  children  sim- 
■pllcitcr.  If,  at  the  date  of  the  execution  of  the  will,  he  has  no 
c/tilih'en  of  his  ow?iy  while  his  wife  the)i  has  several  living  chil- 
dren hj/  her  former  marriage^  whom  he  had  treated  as  his  own, 
it  may  be  conclusivel}''  presumed  that  he  intended  to  benefit 
tliem  by  a  provision  for  '"  his  children."^  This  construction  will 
be  favored  where  the  testator  has  been  married  some  time  with- 
out having  children,  and  his  wife  is  beyond  the  period  of  pos- 
sible child-bearing,  so  that  future  children  could  not  have  been 
in  mind.  It  is  clear  that  where  the  testator  designates  legatees 
as  his  stejy-children,  or  his  cldhlren  hy  marriage,  or  Avhere  he  dis- 
tinguishes between  his  step-children  and  his  own  children, 
dividing  his  estate  equally  between  them  as  classes,  the  former 
are  precluded  from  claiming  as  of  the  latter  class.* 

1  Hussey  v.  Berkeley,  2  Eden,  194,  3  Lawrence  v.  Hebbard,  1   Bradf. 

Amb.  GO'-?.     A  provision  lor  the  dis-  (N.  Y.)  252,  255. 

tribution  of  a  fund  among  the  grand-  ••  In  re  Jeans,  Upton  v.  Jeans,  72 

children  of  the  testator  living  at  a  L.  T.  835,  13  Rep.  G27. 

certain  date  does  not  include  great-  ^  in  re  Kurtz's  Estate,  23  Atl.  R. 

grandchildren,  though  at  the  time  322,  145  Pa.  St.  637.     Prima  facie  a 

of  the  making  of  the  will  the  testa-  son-in-law  or   a  daughter-in-law  of 

tor  had  no  grandchildren.     Smith  v.  the  testator  is  not  permitted  to  take 

Lansing,  53  N.  Y.  S.  633,  24  Misc.  R.  under  a  devise  to  his  children  as  a 

566.  class,  or  to  his  sons  or  daughters  as  a 

-Blankenbaker  v.  Snyder  (Ky.,  class.  But  the  facts  and  circum- 
1897),  36  S.  W.  R  1124;  Fouke  v.  stances  of  the  family  life  of  the  par- 
Kemp,  5  Harr.  &  J.  (Md..  1820).  135;  ties  concerned  are,  upon  the  princi- 
Cutter  V.  Doughty,  23  "Wend.  (N.  Y.,  pies  discussed  in  the  te.xt,  admissible 
1840),  513,  520;  In  re  Hallet,  8  Paige  to  show,  not  that  the  testator  meant 
(N.  Y.),  375;  Sydnor  v.  Palmer,  29  to  give  a  legacy  where  the  will  gives 
Wis.  226,  244;  Siielley  v.  Bryer.  Jac.  none,  but  to  explain  the  meaning  of 
207.  See  also  Thornburg  v.  Am.  Str.  the  terms  emj^loyed. 
Co.,  141  lud.  443. 


§  550.]  GIFTS   TO    CHILDREN   AS    PUKCHASEKS.  717 

§  550.  The  status  of  an  adopted  child  —  IVheii  it  inherits 
as  heir  or  issue. — "Whether  an  adopted  chikl  of  the  testator  or 
of  another  person  shall  be  included  under  a  gift  to  the  children, 
heirs,  issue,  next  of  kin,  or  other  relatives  of  that  person,  as  a 
class,  depends,^;?;'.*?/,  upon  the  statutory  regulations  by  which  the 
\egai  status  of  the  adopted  child  is  determined;  and  secondli/, 
and  principally,  upon  the  expressed  intention  of  the  testator 
regarding  him  or  her.  The  adoption  of  children  was  not  rec- 
ognized by  the  common  law.  It  was  common  in  the  days  of 
the  Eoman  empire,  and  the  principles  which  regulate  it  in  the 
United  States  are  based  upon  the  rules  of  the  Roman  civil  law, 
and  are  also  wholly  of  statutory  origin.  Many  of  the  statutes 
provide  that  the  adopted  child  may  not  only  assume  the  name 
of  the  person  adopting  him  or  her,  but  that  he  or  she  shall  have 
all  the  Tights  of  a  child  and  heir  of  that  person}  If,  therefore, 
the  statute  confers  upon  him  all  the  rights  of  an  heir  or  of  a 
child,  he  will  be  permitted  to  take  under  a  devise  to  the  heirs 
of  the  person  adopting  him,-  or  under  a  gift  to  the  children  or 
the  next  of  kin  of  that  person.  In  the  absence  of  an  express 
statutory  provision  that  the  adopted  child  shall  have  all  the 
rights  of  an  heir  or  child  of  the  person  adopting  him,  a  devise 
to  the  "  children  "  of  A.,''  or  to  the  "  nearest  and  lawful  heirs 
of  A.,"  *  will  not  include  an  adopted  child  of  A.  And,  in  any 
event,  after  a  decree  of  adoption  is  judicially  revoked,  upon 
the  application  of  the  parent,  a  child  cannot  take  under  a  de- 
vise to  the  lawful  heirs  of  the  adopting  parent  contained  in  the 
will  of  the  adopting  parent.^ 

It  is  elsewhere  explained  that  the  word  "  issue "  and  the 
word  "  descendants  "  are  synonymous  in  their  meaning.®  Hence 
where,  by  statute,  the  legal  status  of  a  descendant  has  been 
conferred  upon  an  adopted  child,  he  may  take  under  a  de- 
vise to  "issue."     And  he  is  entitled,  under  a  statute  of  this 

1  Apr)o.il  of  Kowan,  19  Atl.  R.  82,  340;  Eckford  v.  Knox,  07  Tex.  (1886), 

132  Pa.  St.  2'Ji);  Vi.lal  v.  ComrnaKero  200.  203. 

(18.j8),  13   L:l  Ann.  510;   IVwhuiK'  v.  aKussoll  v.  Russell,  8t  Ala.  48,   3 

li^iRers,  114  Mo.  122  (1H'J2).  21  S.  W.  It.  S.  R.  HOO. 

84;  Moran  V.Stewart (M«.), 20. S.W.  R.  Micin.lers  v.   Koppleman,  94  Mo. 

902:  filos  V.  Sjinki'v.  30  N.  R  It.  028.  388.  7  S.  W.  R.  2SM. 

148  111.530;  Siiniuons  v.  Burroll,  28  ^In   ro  Stsssions,  70  Mich.  207,  38 

N.  Y.  S.  625.  8  Misc.  R.  8H8.  N.  W.  R.  240. 

■i  Jolm-ion's  Ai)i>cai,  87 1'u.  St  (1878),  «  See  g  OO'J. 


718  LAW    OF    WILLS.  [§  551. 

charactor,  to  take  a>;  a  nMnaiiidt'i'inaii  the  estate  in  Avliich  the 
adoptimj-  mother  liad  a  life  interest,  with  a  remainder  in  fee 
expressly  given  to  her  latrful  iasue}  But  statutes  of  this  de- 
seription,  being  in  derogation  of  the  rules  of  the  common  law, 
are  always  to  be  strietly  construed,  and  an  adopted  child  would 
not  thereby  be  enabled  to  take  untler  a  devise  to  the  heirs  of 
the  boily;  as  these  words  are  words  of  procreation,  and  not,  in 
their  common-law  sense,  co-extensive  in  meaning  with  "de- 
scendants."- An  adopted  child  takes  under  a  provision  devis- 
ing an  estate  in  real  proi)erty  in  renuiinder  to  such  ])ersons  as 
would  take  by  the  intestate  laws  if  the  testator  had  died  in- 
testate.^ 

ii  551.  Gifts  to  children  iuclude  those  of  different  mar- 
ritii^es. —  "Where  the  testator  gives  property  to  the  children  of 
A.,  he  will  be  presumed,  until  a  contrary  intention  is  proved, 
to  mean  the  children  of  A.  hj  several  marriages}  So,  where  he 
gave  a  legacy  to  his  wife,  with  a  provision  for  "  our  minor 
children^''''  he  w^as  presumed  to  include  children  by  his  first 
marriage  and  minor  children  by  the  second  marriage,  Avhere 
it  was  shown  that  the  first  set  of  children  was  very  young  at 
the  time  the  second  marriage  was  contracted,  and  that  they 
had  been  reared  by  the  second  wife.'^  In  order  that  the  chil- 
dren of  several  marriages  may  be  included  under  a  provision 
for  the  children  of  A.,  who  at  the  date  of  the  will  had  onhj 
been  married  once^  it  was  not  necessary  to  show  that  the  tes- 
tator had  the  future  marriage  of  A.  in  view.®    So,  where  the 

1  Hartwell  v.  Tefft.  19  R.  I.  (1896),  The  court  in  this  case  held  that  the 

644.  647,  35  Atl.  R.  882;  Warren  v.  words  "issue,"  "descendants"  and 

Prescott,  84  Me.  (1892),  483,  17  L.  R.  "heir-at-law"  are    equivalent  to 

A.  435;  Sewall  v.  Roberts,  115  Mass.  "children,"  as  used  in  the  statute 

262.  preventing  lapse. 

-Sewall  V.  Roberts,  115  Mass.  (1874),  3. Johnson's  Appeal,  88  Pa.  St.  346, 

262:  McGunnigle  v.  McKee,  77  Pa.  354.   Compare  the  cases  cited  in  §264. 

St.  81.     An  adopted  child  was,  by  a  on  "the  revocation  of  a  will  by  the 

statute,  presumed  to  be  included  in  adoption  of  a  child." 

a    devise    by    the    testator    to    his  ■*  Andrews  v.  Andrews,  K  R.  15  Ir. 

"children,"  but  not  in  a  devise  to  199. 

the  children  or  issue  of  another  per-  5  Crosson  v.  Dwyer,  9  Tex.  Civ.  App. 
son.  It  was  held  that  a  child  adopted  482,  489,  30  S.  W.  R  929;  Wami> 
by  the  wife  of  the  testator  was  not  ler's  Estate,  23  Pitts.  L.  J.  451,  con- 
entitled  to  share  in  a  bequest  of  the  struing  the  words  "all  our  children." 
residue  of  his  estate  to  the  heirs  at  •»  Barrington  v.  Tristram,  6  Ves. 
law  of  his  wife.  Wyeth  v.  Stone,  144  345.  34y;  Isaac  v.  Hughes,  L.  R  9  Eq. 
Mass.   (1881),   441,    11   N.    E.  R.    729.  (1870),  191,  198. 


§  551.]  GIFTS    TO    CHILDREN    AS    rUECIIASEKS.  719 

testator  provided  for  his  daughter's  children,  and  her  husband, 
Avho  was  living-  at  the  (Uite  of  the  will,  was  still  living'  at  the 
death  of  the  testator,  thougli  he  subsequently  died,  and  the 
daughter  remarried  and  left  several  children  by  a  second  hus- 
band, it  was  held  that  children  born  of  the  marriage  contracted 
after  the  death  of  the  testator  took  equally  with  the  children  of 
the  first  marriage.^ 

The  testator  may  by  express  language  show  that  he  intends 
to  prefer  some  children  of  the  parent  designated  to  others;  and 
if  this  is  the  case,  his  intention  will  be  respected.  So  Avhere 
he  gave  property  to  the  '■^children  of  his  daughter  hj  her  hus- 
hand  Tr.,"  it  was  held  that  the  gift  was  confined  to  her  children 
by  that  person,  and  it  could  not  be  extended  to  her  children  by 
a  second  marriage  after  the  death  of  AY.^  And  where  a  tes- 
tator gave  property  to  four  children  by  a  former  wife  who  were 
specifically  named,  and  two  children  by  his  present  wife  also 
specifically  named,  and  also  ''to  such  child  or  children  as  may 
he  living,''^  the  action  of  the  testator  in  expressly  naming  and 
enumerating  the  children  excluded  all  children  of  the  first  mar- 
riage not  named,  though  living  at  the  execution  and  also  at  his 
death.' 

"Where  the  testator  devises  property  to  his  widow,  and  after 
her  death  "^o  her  children^''  he  Avill  be  presumed  to  mean  not 
only  tliose  of  ivhom  he  is  the  father,  in  which  case  the  wortl  "  her  " 
will  be  exactly  synonymous  with  "  our,"  but  also  those  who  may 
he  horn  to  her  hy  a  sidjsequent  niarriag(\  when  "her"  will  have 
its  proper  meaning.  The  conti-ary,  however,  has  been  held  in 
Louisiana  on  the  grounds  that  a  legacy  cannot,  by  the  peculiar 
law  of  that  state,  be  given  to  a  child  not  conceived  at  the  death 
of  the  testator.* 

1  Critdiett  v.  Taynton,  1  Ry.  &,  My.  3  Stavers  v.  Barnar.l.  2  Y.  &  C.  C.  C. 

(18:30),   541,   TAT);    Jones'  Appeal,   48  539.    C/.  Van  Voorhis  v.  Brintnall,  23 

Conn.  08.     A  Rift  to  the  cliildren  of  Hun  (N.  Y.),  SCO. 

A-,  "  whetluT  \>y  hrr  ]/nsritt  or  any  *  Sevier  v.  Douglass.  44  La.  Ann. 

future  hunhanh:'  where  A.,  at  the  CO.").  10  S.  R.  804.    The  testator  in 

date  of  th."  will,  had  children  then  Co{,'an  v.  MeCabe,  52  N.  Y.  S.  48,  23 

livin(;,  lH'j^<»tt<'n  hy  a  deceasi-il  lius-  Misc.  R.  739,  gave  a  reinaiixler  for 

band,  and  had  ni>  other  at  th(»  death  the  support  of  the  wife  and  children 

of  tlie  testator,  will  go  to  tlu'se  chil-  of   A.  (his   son)  until    the  youngest 

dren.    In  re  l'ickuj»,  1  .Jo.  &  Hen>.  3h9.  child    should    attain    his    majority, 

2Stoi)ford  V.  Uliawortli, 8  Beuv.  331,  when  the  cliildren  were  to  receive 

837;  autr,  -i.  (J2.  the  prim-ipiil.    The  wife  ami  child  of 


720 


LAW    OF    WILLS. 


[§55 


§  55*,*.  Gifts  to  {liildreii  living  at  tho  execution  of  the 
will. —  The  general  rule  that  a  will  speaks  as  of  tho  death  of 
the  testator  '  is  subjeet  to  the  (jualilicatioii  that,  when  a  testa- 
tor expressly  refers  to  a  condition  of  things  as  existing  at  the 
time  of  the  execution,  it  will  speak  as  of  its  date.-  Under  this 
exception,  if  the  testator  devises  property  to  children  as  a  class 
whom  he  describes  as  now  living,  meaning  at  the  execution  of 
the  will,  only  those  who  are  living  at  that  date  will  be  entitled 
to  take,  to  the  exclusion  of  the  heirs  of  those  who  have  died 
before  tlie  execution,  and  of  children  who  are  born  subsequently 
thereto.^  And,  a  fortiori,  a  devise  to  children  who  are  specific- 
ally named  1%  a  devise  to  them  as  individuals  and  not  as  a  fluct- 
uatiuiT  class.  Those  who  are  alive  at  the  date  of  the  will 
corresponding  to  the  names,  if  they  survive  the  testator,  will 
take,  but  no  others,  and  the  shares  of  those  who  ])redecease 
him  will  lapse  in  the  absence  of  a  statute  preventing  lapse.* 
But  a  gift  to  children  who  are  named  and  to  others  '■'■hereafter 
to  he  horn''''  is  a  gift  to  a  class,  and  not  to  children  as  individ- 
uals, and  is  to  be  divided  among  the  members  of  the  class, 
including  those  who  are  specifically  named,  who  survive  the 


A.,  living  at  the  date  of  the  will, 
died  before  the  testator  and  K.  re- 
man-ied  and  had  four  children  be- 
fore the  period  of  distribution.  The 
second  wife  and  her  children  were 
permitted  to  take.  See  post,  §  602, 
and  §  14,  as  to  what  time  a  will 
speaks  when  a  husband  or  wife  is 
mentioned. 

1  Ante,  %%  14, 15. 

-Ante,  %  15. 

3  Watson  V.  Watson  CMc),  19  S.  W. 
R  543;  Rowland's  Estate,  24  Atl.  R. 
1091,  150  Pa.  St.  25;  Whitehead  v. 
Lassiter,  4  Jones  (57  N.  C,  1859),  Eq. 
79:  Wigden  v.  Mello,  L.  R.  23  Ch.  D. 
737,  52  L.  J.  Ch.  D.  767. 49  L.  T.  {N.  S.) 
585;  Habergham  v.  Ridehalgh,  L.  R. 
9  Eq.  395,  400;  Moffat  v.  Burnie,  18 
Beav.  211;  FuUford  v.  Fiillford.  16 
Beav.  565;  James  v.  Richardson,  1 
Yentris,  334,  2  Ventris,  311;  Cln-is- 
topherson  t.  Naylor,  1  Mer.  320; 
Leach  v.  Leacli.  2  Younge  &  C.  C.  C. 
495;  Ramsay  v.  Shelmerdine,  L.  R  1 


Eq.  129:  Fitzroy  v.  Duke  of  Rich- 
mond. 27  Beav.  186;  Burchet  v.  Dur- 
dant,  T.  Raym.  320;  Soteldo  v.  Clem- 
ent, 29  Wkly.  L.  B.  384.  But  a  gift 
to  a  class  consisting  of  two  or  more 
generations  may  be  made  in  such 
terms  that  all  take  as  original  mem- 
bers of  the  one  class.  Thus,  where 
the  devise  is  to  children  as  a  class, 
the  issue  of  deceased  children  to  take 
the  share  their  parent  would  have 
taken  if  living,  the  children  of  a 
child  dead  at  the  date  of  the  will 
take  their  parent's  share  which  he 
would  take  at  the  period  of  distribu- 
tion. In  re  Parsons,  8  Reports,  430; 
Blaber  v.  Parsons,  id.  Compare  ante, 
§354. 

4  Petway  v.  Powell,  2  Dev.  &  Bat. 
(N.  C.)  Eq.  308;  Rowland's  Estate, 
141  Pa.  St.  553,  21  AtL  R  735;  Brewer 
V.  Opie,  1  Call  (Va,),  184;  Bain  v. 
Lesclier,  11  Sim.  397;  Threadgill  v. 
Ingram,  1  Ired.  Law  (23  N.  C,  1841), 
577.     Cy.  §  337. 


§  ^^3-] 


GIFTS   TO    CIIILDREX   AS    TURCHASERS. 


721 


testator.^  Again,  a  gift  to  cliililreii  who  are  enuiiicrated,  as, 
for  example,  "to  the  five  chiklren  of  A.,"  is  not  usually  a  gift 
to  them  as  a  class,  but  to  those  who  are  in  existence  at  the 
date  of  the  will  as  individuals;  and  in  case  any  of  them  die 
suijsequently  during  the  life-time  of  the  testator,  his  legacy 
wnll  lapse  for  the  benefit  of  the  residuary  legatee  or  the  next 
of  kin.2 

§  553.  When  the  class  is  to  be  ascertained  in  tlie  case  of 
immediate  gifts  to  children. —  Where  a  gilt  is  to  children  as 
a  class  in  general  terms,  and  no  period  is  mentioned  by  the 
testator  for  the  vesting  of  the  legacy,  the  gift  will  be  imme- 
diate. That  is  to  say,  the  gift  will  vest  in  title  and  possession 
at  the  death  of  the  testator.  Accordingly  it  is  a  general  rule 
in  these  cases  that  only  the  children  who  have  been  born  or 
begotten  prior  to  that  date,  and  who  are  in  esse,  including  a 
child  en  ventre  sa  mere^  at  that  time,  will  be  entitled  to  a  share 
in  the  distribution.'*     It  is  not  material  whether  the  parent  of 

ticularly  where  it  appears  that  the 
testator  meant  that  each  child  should 
take  an  equal  portion,  the  descend- 
ants of  any  child  who  died  after  the 
execution  of  the  will  and  during  the 
life  of  the  testator  will  take  the  cliild's 
share.  Jones  v.  Hunt,  9G  Teun.  (1S9G), 
369,  371,  34  S.  W.  R.  693;  In  re  Sib- 
ley's Trusts,  L.  R.  5  Cli.  D.  494. 

3  ^  567. 

*  Ingram  v.  Girard,  1  Houst.  (Del, 
IS.").-)),  286;  Wood  v.  McGuire,  15  Ga. 
(1854),  202;  Springer  v.  Congleton,  30 
Ga.  977;  Lockerinan  v.  ]\lcBlair,  G 
Gill  (Md.),  177;  Young  v,  Robertson, 
11  Gill  &  J.  (Md.,  1839),  328,  341; 
Winslow  V.  Goodwin,  7  Met.  (48 
Mass.,  1844),  363,  375;  Merriam  v.  Si- 
monds,  121  Mass.  198,  202;  Dixon  v. 
Picket,  10  Pick.  517,  518;  Yeaton 
V.  Roberts,  28  N.  11.  459;  Cessna  v. 
Cessna,  4  Bush  (Ky.),  510;  Post  v. 
Herbert,  27  N.  J.  Ya\.  540;  Chasniar 
V.  PiicUin,  37  N.  J.  Kcj.  415;  Stirea 
V.  Van  Rensselaer,  2  IJradf.  (N,  Y.) 
172;  Jenkins  v.  Froyor,  4  Puigo  Cli. 
(N.  Y.,  1833),  47.  53;  I^mllard  v.  Cos- 
ier, 5  Paige  Ch.  (N.  Y.,  1830),  172; 
Mowalt  V.  Curow,  7  Puigo  Ch.  (N.  Y., 


1  Shiers  v.  Ash  worth,  L.  R.  25  Ch. 
D.  162,  53  L.  J.  Ch.  180,  50  L.  T.  (N.  S.) 
18;  Downes  v.  Long,  79  Md.  382,  29 
AtL  R  827.  It  would  seem  that  the 
testator  need  not  name  the  children 
in  order  that  a  gift  shall  be  to  them 
as  individuals.  For  where  the  de- 
vise was  "to  the  surviving  children 
of  A,"  who  was  dead  at  the  date  of 
the  execution,  the  testator  stating 
that  he  did  not  know  their  names, 
the  court  held  that  he  would  have 
named  them  if  he  could,  and  hence 
the  gift  was  to  the  children  of  A.  as 
individuals  living  at  the  date  of  the 
will,  to  the  conclusion  of  the  heirs 
of  those  who  had  died  and  children 
subsequently  born.  !Morse  v.  Mason, 
11  Allen  (Mass.),  30,  37. 

^  In  re  Smith's  Trusts,  L.  R.  9  Ch. 
D.  119;  In  ro  Stanlield,  I^  It  13  Ch. 
D.  84,  49  L.  J.  Clu  D.  750,  43  L.  T. 
(N.  S.)  310;  Siierer  v.  HislK)|),  4  Pro. 
C.  C.  55.  A  devise  to  the  children  of 
A.,  "now  Uviiiff  at  M."  is  not  a  gift 
to  them  a.H  a  cIjuhh  which  is  to  Im;  as- 
certained a.s  of  tin:  dintlt  of  the  testa- 
tor, but  to  all  tlio  children  wlio  are 
living  at  M.  as  individuals,  and  par- 
40 


722 


LAW    OF    WILLS. 


[§  554. 


the  children  who  arc  mentioned  is  then  living  or  not,  for  the 
rule  applies  both  to  a  devise  to  the  children  ol' a  living  person^ 
and  to  a  devise  to  the  children  of  a  person  who  is  deceased.'- 

§  554.  Devises  to  cliildren  where  distrihiitiou  is  to  be  at 
majority. —  Testamentary  gifts  to  children,  to  bo  paid  to  or 
distributed  among  them  when  they  shall  attain  majority,  or 
when  they  shall  marry,  are  very  common.  The  principles  and 
rules  of  construction  appertaining  to  such  gifts  are  somewhat 
inharmonious,  and  it  may,  perhaps,  with  safety  be  said  that 
each  case,  where  distribution  is  postponed  until  the  attainment 
of  majority  or  marriage,  depends  on  its  own  facts,  and  on  tho 


1839),  328,  329;  Tucker  v.  Bishop,  IG 
N.  Y.  402,  404;  Downing  v.  Marshall, 
23  N,  Y.  3GG;  Sliinn  v.  Motley,  3  Jones 
Eq.  (N.  C.)  490;  Simpson  v.  Spence,  5 
Jones  Eq.  (N.  C.)  208,  210;  Myers  v. 
IVIyers,  2  McCord  (S.  C,  1837),  Eq. 
236;  Gross'  Estate,  10  Pa.  St.  361; 
post,  §  610. 

1  Aspinwall  v.  Duckworth,  35  Beav. 
307;  Garbrand  v.  Mayot,  2  Vern.  105; 
Singleton  v.  Gilbert,  1  Cox,  68;  Viner 
V.  Francis,  2  Cox,  190,  192;  Devisme 
V.  Mello,  1  Bro.  Ch.  R.  537;  Coleman 
V.  Jarrom,  L.  R.  4  Ch.  D.  1G5,  170,  25 
W.  R  137,  35  L.  T.  (N.  S.)  614;  Shaw 
V.  McMahon,  4  Dr.  &  Smale,  431,  438, 
440,  35  L.  T.  (N.  S.)  614;  Fell  v.  Bid- 
dolph,  L.  R.  10  Com.  Pleas,  701,  709; 
Young  V.  Davies,  2  Dr.  &  Smale,  167, 

l-i. 

2  Loring  v.  Thomas,  2  Dr.  &  Smale, 
497:  Viner  V.  Francis,  2  Cox.  190,  193. 
"  Where  a  gift  is  to  a  class  of  indi- 
viduals in  general  terms,  as  to  the 
children  of  A.,  and  no  period  is  fixed 
for  the  distribution  of  the  legacy,  the 
time  for  distribution  will  be  the 
deiith  of  the  testator;  and  hence, 
only  cliildren  born  or  begotten  prior 
to  and  in  esse  at  that  time  will  be 
entitled  to  share  in  the  distribution. 
But  where  distribution  is,  by  the 
terms  of  the  will,  to  be  made  at  some 
time  subsequent  to  the  deatli  of  the 
testator,  the  gift  will  embrace  not 
only  all  children  living  at  the  death 


of  tho  testator,  but  also  all  those  wlio 
shall  subsequently  come  into  exist- 
ence before  the  period  of  distribu- 
tion; and,  if  the  befjuost  is  a  present 
bequest,  the  beneficiaries  who  are  in 
esse  at  the  death  of  the  testator  will 
take  vested  interests  in  the  fund,  but 
subject  to  open  and  let  in  after-born 
cliildren,  wlio  shall  come  into  being 
and  belong  to  the  class  at  the  time  ap- 
pointed for  tlie  distribution.  Where 
the  period  of  distribution  is  post- 
poned until  the  attainment  of  a 
given  age  by  tlie  children,  the  gift 
will  api^ly  only  to  those  wlio  are  liv- 
ing at  the  death  of  the  testator  and 
who  shall  have  come  into  existence 
before  the  first  child  attains  tlie  age 
named,  being  the  period  when  the 
fund  is  first  distributable  in  respect 
to  any  one  object  or  member  of  the 
class.  Where  the  members  of  a  class 
take  vested  interests  in  a  legacy  dis- 
tributable at  a  period  subsequent  to 
tiie  death  of  the  testator,  but  subject 
to  open  and  let  in  after-born  chil- 
dren, they  take  their  vested  shares 
subject  to  the  distribution  of  those 
shares  as  the  number  of  the  members 
of  the  class  is  increased  by  future 
births ;  and  on  the  death  of  any  of  the 
children  previous  to  the  period  for 
distribution,  their  shares  will  go  to 
their  respective  representatives."  By 
Paige,  J.,  in  Tucker  v.  Bishop,  16  N. 
Y.  402,  404. 


§  55i.] 


GIFTS    TO    CIIILDKEN   AS   PrECHASEKS. 


723 


peculiar  language  of  the  Avill.  Where  the  gift  is  simpl}^  to 
the  children  of  the  testator,  or  to  the  children  of  A.,  and  it  is 
not  preceded  by  a  prior  life  estate,  but  is  stated  in  general 
terms  to  be  payable  when  the  beneficiaries  attain  twenty-one 
years  of  age,  such  children  only  will  take  who  are  in  'being  at 
the  death  of  the  testator^  or  who  come  into  existence  before  the 
eldest  child  who  is  also  living  at  the  death  of  the  testator  shall 
attain  twenty-one  years  of  age,  including  in  each  case  a  child 
en  ventre  sa  mere,  and  the  issue  of  a  child  deceased  between 
the  death  of  the  testator  and  the  date  of  distribution.^ 

Where  the  gift  is  a  remainder  to  the  children  after  a  life  es- 
tate, and  is  distributable  as  they  attain  twenty-one  years  of  age, 
it  will,  in  the  absence  of  a  contrary'  intention,  vest  in  all  those 
who  compose  the  class  of  children  alive  at  the  death  of  the  tes- 
tator, and  all  those  who  shall  come  into  existence  during  the  life- 
time of  the  jprior  life  tenant,  and  shall  also  survive  until  the  eldest 


1  Handberry  v.  Doolittle,  38  111.  206; 
Hubbard  v.  Lloyd,  6  Cush.  (Mass.) 
523,  524;  Security  Co.  v.  Hartford, 
64  Conn.  579:  Emerson  v.  Cutler,  14 
Pick.  108,  113:  Drake  v.  Pell,  3  Edw. 
Ch.  (N.  Y.)  251:  Fleetwood  v.  Fleet- 
wood, 2  Dev.  Eq.  (N.  C,  1832),  222; 
Simpson  t.  Spence,  5  Jones'  Eq.  (N.  C.) 
208,  210;  Vanhook  v.  Rogers'  Ex'r.  3 
Murphey,  L.  &  Eq.  (N.  C.)  178,  180; 
Heisse  v.  Markland,  2  Rawle  (Pa.),  274, 
275;  De  Veaux  v.  De  Veaux,  1  Strobh. 
Eq.  (S.  C.)  283;  Richardson  v.  Sinkler,  2 
Desaus.  127;  Andrews  v.  Partington, 
3  Bro.  C.  C.  401;  Evans  v.  Harris,  5 
Beav.  45,  47;  Gimblett  v.  Purton,  L. 
R  12  Eq.  427,  4.30  (condemning  Bate- 
man  V.  Gray,  L.  R.  6  Eq.  215);  Gar- 
ratt  V.  Weeks,  L.  R.  20  Eq.  C47,  049; 
Dean  v.  Dean  (1891),  3  Ch.  150;  Daw- 
son V.  Oliver-Massay,  L.  R.  2  Ch.  D. 
753;  Robley  V.  Ridings,  11  Jur.  813; 
Gillman  v.  Daunt,  3  Kay  «fe  J.  48; 
Ringrose  v.  Bramham,  3  Cox  Ch.  It. 
:}84,  ;i87;  Peyton  v.  Uuglics,  7  Jurist, 
311:  Storrs  v.  B<inbow,  3  My.  &  K. 
40.  Wliori  one  or  more  of  the  chil- 
dren shall  liavo  attained  twenty-ono 
at  the  death  of  tlie  tcHtator,  the  class 
is  ascertained  an  of  tiiut  date,  and 


the  legacy,  if  immediate,  should  be 
paid  to  them  at  once.  Cf.  ante,  §  508. 
The  reader  should  distinguisli  clearly 
between  a  gift  to  children  individ- 
ually or  as  a  class,  to  be  paid  icJieu 
they  attain  majority  or  marrj',  ami 
a  gift  to  children  as  individuals  or 
as  a  class  if  they  reach  majority  or 
marry,  with  a  gift  over  in  case  they 
do  not.  The  former  is  a  vested 
devise  descendible  and  devisable; 
the  latter  is  a  mere  contingent  ex- 
ecutory gift.  A  legacy  to  the  chil- 
dren of  A.,  to  be  paid  as  they  sev- 
erally attain  the  age  of  twenty-one, 
vests  at  the  death  of  the  testator  in 
the  children  of  A.  tJien  living,  and 
in  all  his  after-born  children  as  soon 
as  tltcy  are  horn.  Parker  v.  Leach, 
GO  N.  H.  410,  31  Atl.  K.  19.  "Where 
the  devise  to  the  children  wliom  A., 
the  parent,  may  leave,  is  to  go  over 
in  case  none  of  them  shall  reach 
twentj'-one,  and  in  case  none  siiall 
leave  issue  which  shall  attain  tiiat 
ago,  the  children  whom  A.  leavrs  him 
surviving  take  a  contingent  inten-st, 
which  becomes  vested  only  on  each 
rcachitig  Ids  majority.  IJoutelle  v. 
City  Bank,  18  li.  L  177,  20  Atl.  R  53. 


TlH 


LAW    OF    WILLS. 


[§  554. 


chilli  who  was  living  at  the  death  of  the  testator  shall  attain  the 
age  of  twenty-one  years.  But  this  rule  will  yield  before  an  ex- 
pression of  a  contrary  intention,  as  where  the  remainder  is  given 
to  the  children  who  may  survive  the  life  tenant,  to  vest  in  them 
as  they  attain  the  ago  of  twenty-one.^  So,  w^here  the  devise 
was  to  A.  for  life,  with  a  remainder  to  the  children  of  B.  who 
may  be  living  at  the  death  of  the  testator,  or  who  may  be' born 
afterwards,  and  who  shall  attain  the  age  of  twenty-one,  and 
no  child  who  attains  that  age  to  he  excluded,  it  was  held,  in  spite 
of  the  reference  to  children  '"'■horn  afterwards^''  that  the  class 
was  to  be  ascertained  either  at  A.'s  death  or  when  the  eldest 
child  of  13.  livino-  at  the  testator's  death  shall  attain  the  a^-e  of 
twenty-one,  whichever  event  happens  last,  and  those  children 
who  were  born  after  hoth  events  were  excluded.^  And  the  rule 
that  where  any  child  has  attained  his  majority  at  the  death  of 
the  testator,  no  child  born  subsequently  is  let  in,  is  applicable 
not  only  to  immediate  gifts,  but  to  gifts  to  children  after  a  life 
€state.*     Some  exceptions  to  this  rule  by  which  children  born 


1  Winslow  V.  Goodwin,  7  Met.  (48 
Mass.,  1844),  363,375;  Collin  v.  Collin, 
1  Barb.  Ch.  (N.  Y.,  1845),  636;  Shat- 
tuck  V.  Stedman,  2  Pick.  (19  ]Mass.) 
407,  470;  Ward  v.  Tomkins,  30  N.  J. 
Eq.  3;  Van  hook  v.  Rogers,  3  Murpli. 
L.  &  Eq.  (N.  C.)  178;  Buckley  v.  Read, 
15  Pa.  St.  85;  Male  v.  Williams,  48  N. 
J.  Eq.  33,  21  Atl.  R.  854;  Williams  v. 
Williams,  L.  R.  6  Ch.  App.  782;  Hag- 
ger  V.  Payne,  23  Beav.  474,  481;  Con- 
greve  v.  Congreve,  1  Bro.  C.  C.  530. 
Cf.  Cropley  v.  Cooper,  7  D.  C.  226,  19 
Wall.  167.  The  construction  which 
vests  the  legacy  wlien  the  eldest  child 
living  at  the  testator's  death  attains 
twenty-one  avoids  the  inconvenience 
in  some  cases  of  keeping  open  the  es- 
tate in  the  case  of  a  devise  of  a  leg- 
acy to  the  children  of  A.,  who  is  liv- 
ing at  the  death  of  the  testator.  If  a 
gross  sum  is  given  to  the  children  of 
A-,  to  be  paid  in  equal  shares  to  each 
one  at  tinntij-onc,  there  is  no  incon- 
venience in  postponing  the  vesting 
during  tiie  wliole  life  of  A.,  for  there 
is  nothing  to  do  but  set  aside  a  gross 


sum  until  tlie  eldest  of  all  his  chil- 
dren born  at  any  time  attains  twenty- 
one,  and  tlien  divide  among  all  his 
children.  But  where  there  are  dis- 
tinct legacies,  payable  tvlicn  each 
child  attains  twenty-one,  to  follow 
out  this  method  and  permit  children 
to  take  who  are  born  after  the  eldest 
attains  twenty-one  would  keep  the 
matter  open  until  the  deatli  of  the 
parent;  for  no  one  can  know  how 
many  legacies  are  to  be  paid  until  he 
knows  how  many  children  tliere  are, 
and  tliis  cannot  be  known  until  the 
jiarent's  deatli. 

2  Parsons  v.  Justice,  34  Beav.  598. 
See  Ringrose  v.  Bramham,  2  Cox  Ch. 
384. 

3  Clarke  v.  Clarke,  8  Sim.  59.  If  a 
money  legacy  be  given  to  children 
as  a  class,  and  directed  to  be  paid  to 
each  of  them  at  the  age  of  twenty- 
one,  and  there  are  no  children  who 
survive  the  testator,  the  legacy  will 
lapse.  Rogers  v.  Mutch,  L.  R.  10  Cli. 
D.  25. 


§  555.]  GIFTS   TO    CHILDREN   AS   rUKCIIASERS.  T25> 

after  the  eldest  child  attains  majority  are  excluded  may  be- 
noted.  If  the  support  and  maintenance  of  all  the  children  are 
provided  for  until  they  shall  severally  attain  majority,  which 
of  course  Avould  extend  the  final  distribution  until  after  the 
eldest  had  attained  his  majority,  all  the  children,  including  those 
born  after  this  event,  will  be  included  in  the  class.^  But  the 
mere  fact  that  trustees  are  permitted  to  advance  a  portion  of 
his  share  to  any  child,  or  that  on  a  child's  death  his  share  goes 
to  the  survivor  or  survivors,  does  not  vary  the  rule.^  So,  even 
though  the  gift  may  be  void  for  remoteness  of  vesting,  as  it 
would  be  in  the  case  of  a  gift  to  the  children  of  A.,  who  is  alive 
at  the  testator's  death,  to  vest  in  them  whcm  the  youngest  shall 
attain  the  age  of  twenty-two,  the  rule  would  still  apply.' 

§  555.  Construction  of  a  clause  directing  distribution  when 
the  youngest  child  shall  attain  the  age  of  twenty-one, — 
"Where  the  distribution  of  an  immediate  gift  among  the  chil- 
dren of  the  testator,  or  among  the  children  of  another  person, 
is  directed  in  express  terms  when  the  youngest  of  such  children 
shall  attain  the  age  of  twenty-one,  the  question  at  once  arises 
whether  the  testator  refers  to  the  majority  of  the  youngest  one 
of  those  children  who  are  living  at  the  date  of  his  death,  or 
whether  he  means  the  youngest  child  of  all  who  may  he  horn^ 
wlcether  hefore  or  after  his  death.  Where  the  testator  is  speak- 
ing of  the  youngest  of  his  ovjn  children,  he,  of  necessity,  will  be 
presumed  to  mean  that  one  who  is  the  youngest  of  the  class  at 

1  Iredell  v.  Iredell,  25  Beav.  485, 491,  is  a  son  of  A.,  but  if  he  (B.)  shall  die 

492;  Bateman  V.  Gray,  L.  R.  0  Eq.  215.  nnder  the  age  of  twenty-one,  then  to 

A  devise  to  nephews  and  nieces,  or  A.^s  other  children  arriving  at  such 

to  any  other  class  of  relations,  after  age,  all  the  other  children  living  at 

a  life  estate,  to  be  paid  to  them  at  the  death  of  the  testator,  or  born  be- 

majority  or  on  marriage,  will  include  fore  the  eldest  child  then  living  shall 

all  those  coming  into  being  during  attiiin    his     majority,  are    entitled, 

the  life  estate.    Balm  v.  Balm,  ;J  Sim.  wlietlier   born   before  or   after  the 

492,  49:};  Sliuttleworth  v.  Grieves,  4  death  of  B.     Ifaugliton  v.  Harrison, 

My.&  Gr.  :j5;  Cort  v.  Winder,  1  Colly.  2  Atk.  329,     So  win  10  there  is  a  re- 

320,321.  maindcr  over  to  tlio  children  of  A., 

2Titcomb   V.   Butler,  3  Sim.   417:  after  a  life  estate  in  one  of  them,  on 

Balm  V,  Balm,  3  Sim.  492;  Matdiwick  his  death  unmarried  all  the  cliiltlren 

V.  (Vx>k,  3  Ves.  009,  Oil,  will   take,  whether   born    before   or 

•»I^'akev,  Robinson,  2  Mer.  303, 383;  after  the  death  of  the  life  tenant. 

Arnold  v,  Congreve,  1  IL  &  My.  209;  Ellison  v,  Airey,  I  Ves.  Ill;  Stanley 

ComjKjrt    V.    Austen,    12    Sim.   218,  v,  Wi.se,  1  Cox,  Ch.  R  432. 
Wht-'re  a  legacy  was  gi\en  to  B.,  h7<c» 


726  LAW   OF   -SVII.LS.  [§  555. 

his  death,  iiu'liulin^^  a  child  en  ve^iire sa  mere.  Thus,  whore  the 
testator  leaving  live  minor  cliililivn  jn-ovidcd  tliat  there  shoukl 
b'3  no  division  of  his  estate  wwiWIiU  you lUjentcJiUd  fihould  attain 
}iis  majority^  it  was  held  that  he  did  not  mean  his  youngest 
•child,  whenever  born,  that  should  in  fact  attain  his  majority, 
but  he  meant  the  youngest  child  who  was  living  at  his  death. ^ 
AViierc  the  testator  gives  to  the  children  of  his  son,  ^'■loni  or  to 
he  ho?'n,"  a  fund  to  accumulate  until  the  youngest  surviving  of 
these  children  shall  have  attained  the  age  of  twenty-one,  it 
M'ould  seem  that,  by  including  children  "born"  as  well  as  those 
"to  be  born,"  he  means  the  youngest  one  of  his  son's  children 
•who  are  living  at  the  date  of  the  execution  of  the  will,  and 
not  the  youngest  of  any  who  might  be  subsequently  born  to 
his  son,  and  who  might  survive  him.'-  So  where  a  remainder 
after  a  life  estate  to  A.  was  devised  for  the  support  of  his  chil- 
dren, to  be  divided  among  them  when  the  youngest  child  at- 
tained the  age  of  twenty-one,  it  was  held  that,  where  A.  had 
no  children  at  the  death  of  the  testator,  but  after  the  death 
of  the  testator,  on  the  death  of  his  wife,  married  again,  the 
youngest  child  referred  to  meant  those  of  the  subsequent  mar- 
riage.' But  generally,  where  the  majority  of  the  youngest 
child  is  construed  as  meaning  that  child  who  is  the  youngest 
of  the  testator's  children  at  the  date  of  his  death,  no  child  born 
after  that  child  shall  attain  his  majority  will  be  capable  of 
taking.*  A  trust  which  is  to  continue  during  the  life  of  the 
"  youngest  grandchild  "  of  several  named,  for  the  benefit  of 
grandchildren  living  at  the  death  of  the  testator  or  those  snh- 
sequently  born,  and,  on  the  majority  of  the  youngest  grandchild, 

1  Armstrong  v.  Crapo,  72  Iowa,  G04,  Bateman  v,  Foster,  1  Coll.  118,  120; 

3-i  N.  W.  R.  437;  Curd  v.  Curd  (Ky.,  Bailsford  v.  Hey  ward,  2  Des.  (S.  C. 

1887),  4  S.  W.  R  220;  Earnshaw  v.  1805),  Eq.  18.     Cf.  Meikle's  Estate,  2U 

Daly,  1  App.  D.  C.  218;    Hocker  v.  N.  Y.  S.  88. 

r.entry,  3  Mete.  (GO  Ky.)  403;  Meyer  2  in  re  McBride's  Estate,  25  Atl.  R. 

V.  Eisler,  29  Md.  (1808).  28;  Simpson  513,  152  Pa.  St.  192,  31  W.  N.  C.  333: 

V.  Cook,  24  Minn.  180;  Butler  v.  But-  Appeal  of  Real  Estate,  Title,  Ins.  & 

ler,  3  Barb.  Ch.  (N.  Y.)  304;  Burke  v.  Trust  Co.,  152  Pa.  St.  202,  31  W.  N.  C. 

Valentine,  52  Barb.  (N.  Y.)  412.  415;  333. 

Galway  v.  Bryce,  30  N.  Y.  S.  985,  10  3  Cogan  v.  McCabe,  52  N.  Y.  S.  48, 

Misc.  R  255;  In  re  Sand's  Will,  3  N.  23  Misc.  R.  739. 

Y.  S.  67,  1  Con.  Sur.  259;  Manwaring  <  Deighton's  Trust,  L.  R.  2  Ch.  D. 

V.    Beavor,    8    Hare,    44;    Perry    v.  783;  Selby  v.  Whittaker,  26W.  R.  117, 

Rhodes,  5  Jones'  Eq.  (N.  C.)  140,  142;  L.  R.  G  Ch.  D.  239. 


§  556.]  GIFTS    TO    CHILDREN    AS    PURCHASERS.  T2T 

to  the  grandchildren  then  living^  means  on  the  majority  of  the 
youngest  grandchikl  alive  at  the  date  of  the  will.^  "Where 
the  testator  devised  his  farm  to  be  divided  when  a  life  tenant 
should  die,  or  "when  his  youngest  child  should  come  of  age,  he 
meant  the  youngest  child  named  in  his  will  or  living  at  his 
death,  and  not  the  youngest  child  of  those  subsequently  born 
to  the  life  tenant.- 

§  556.  Testimony  to  prore  the  age  of  a  legatee, —  It  may 
be  useful  in  this  connection  to  consider  some  of  the  rules  of 
proof  which  are  invoked  where  the  attainment  of  majority  or 
other  age  is  in  issue.  In  computing  the  age  of  a  person  the 
day  of  his  birth  is  included,  so  that  he  will  attain  his  majority 
on  the  day  preceding  the  twenty-first  anniversary  of  his  birth. 
Thus,  if  it  is  shown  that  he  was  born  on  the  22d  day  of  May, 
1877,  he  would  be  twenty-one  years  of  age  on  the  21st  day  of 
May,  1S9S,  and,  as  the  law  disregards  in  its  computation  frac- 
tions of  a  day,  he  will  be  regarded  as  being  twenty-one  years 
of  age  at  the  first  moment  of  that  day.^ 

A  certified  copy  of  the  official  registry  of  births  provided 
for  by  statutory  regulations  may  be  employed  to  prove  the 
date  of  birth.*  And  the  physician  or  midwife  who  was  pres- 
ent at  the  birth  is  competent  to  testify  to  the  fact  and 
date.*  When  his  recollection  is  faint  as  to  the  date,  an  orig- 
inal contemporaneous  entry  made  by  him  in  his  accounts  or 
in  his  diary  is,  if  he  was  present  at  the  birth,  competent  evi- 
dence, provided  he  is  able  to  swear  that  it  was  correctly  made 
at  the  time.^     If  it  shall  appear  that  the  physician  Avho  at- 

iRoe  V.  Vingut,  1  N.  Y.  S.  914,  21  witli    liim.     Moore  v.   Schindelette, 

Abb.  N.  C.  404.  Wi  ]Mich.  C13  (1894),  Gl  N.  W.  R.  03. 

2  Arnold  V.  Arnold,  41   S.  C.  291.  3 1  Bl.  Com.  4G;]  ;  2  Kent,  2;«;  Her- 

(1893).  19  S.  E.  R.  670.     Where  the  bert  v.Torball,  1  Siderfin.  1G2;  Raym. 

partition    of    land    devised    to    the  84;  Anon.,  1  Salkeld,  44;  Howard's 

children  of  the  testator  and  to  tlie  Case,  2  Salkeld,  G25.     Cf.  Lester  v. 

children    of    a    married    daughter  Garland,  15  Ves.  257. 

share    and    sliare    alike  was  to  be  <Shutesbury  v.  Ilaillev,  13:3  Mas.s. 

postjKjned  until  the  youngest  cliild  (1882),  242;  Uiidcrliill  ..n  Kvi.l,  i|  142, 

of  tlie    testator    should    attain    the  citing  cases. 

age  of  twenty-one,  and  the  daugh-  *  Heates   v.    Retalliclc,    11    Pa.    St. 

ter  died  prior  to  that  time,  leaving  (1849).  2SM. 

one  child  surviving,  the  distribution  •'  lligham  v.  Ridgway,  10  I'asl,  109; 

may  tak<,' i»laee  imineiliately,  for  that  finy  v.  Mrad.  22  N.  V.  402;  Heath  v. 

child's  share  vests  at  once,  as  there  \V«'st,  20  N.  11.  191. 
can  iKi  no  more  children  to  diviilo 


72S  LAW    OF   AVILLS.  '    '  [§  557. 

tended  the  l)irth  is  dead,  or  if  his  presence  as  a  witness  can- 
not be  jn'ociHvd  hocauso  lie  is  insane  or  out  of  the  jurisdiction, 
an  entry  uuulo  by  him  in  a  book  which  he  was  accustomed  ta 
keep  in  the  ])erformance  of  his  professional  duty  is  cn-idenco 
of  the  date  of  birth. ^  Thou<;li  a  certificate  of  tlie  Ijaptism  of 
a  chiUl  is,  of  itself,  inadmissible  as  direct  evidence  to  show  the 
date  of  his  birth,  though  it  may  state  the  date,-  it  is  admissible 
to  prove  that  the  person  was  in  beini?  at  its  date.'  The  per- 
son whose  ago  is  in  question  may  testify  to  his  own  age,  so  far 
as  his  knowledge  is  based  upon  the  reputation  which  is  cur- 
rent in  his  family."'  Whether  or  no  the  age  may  be  deter- 
mined by  inspection  has  not  been  positively  determined.  Some 
courts  permit  a  person's  age  to  be  determined  by  inspection, 
even  in  criminal  cases.*  Other  autliorities,  however,  have  de- 
termined that  such  proof  is  incompetent,  and  that  a  court 
cannot  determine  the  age  of  a  person  except  upon  oral  evi- 
dence.^ What  is  commonly  called  pedigree  evidence  is  admis- 
sible to  prove  the  facts  of  the  family  history,  such  as  the 
birth,  age,  death  or  marriage  of  persons.^ 

§557.  The  operation  of  the  words  <^living,"  ^^thcii  liv- 
ing," and  ^'surviving/'  in  determining  when  class  of  eliil- 
dron  is  to  be  ascertained. —  The  general  rule  that  all  children 
Avho  are  in  esse  at  the  death  of  the  testator,  and  all  those  who 
are  subsequently  born  during  the  existence  of  the  prior  estate, 
shall  constitute  the  class  who  are  to  take  after  its  determina- 
tion, is  subject  to  an  expression  of  a  contrary  intention  on  the 
part  of  the  testator.  The  tendency  of  all  the  cases  in  which 
words  of  survivorship  are  used  is  to  refer  them  to  as  early  a 
period  as  possible.  Very  often  the  word  "  surviving,"  or  "  liv- 
ing," which  is  synonymous  with  it  when  it  is  used  in  a  gift 
following  a  life  estate,  as  to  A.  for  his  life  with  remainder  to 
my  ^^ surviving"  children,  v^nWhe,  construed  to  mean  such  as 

1  Arms  v.Middleton,  23 Barb.  (1857),  (1876),  29G;  Houlton  v.  Manteuffel 
571.  (Minn.,  1893).  53  N.  W.  R.  541. 

2  Clark  V.  Trinity  Cliurcli,  5  W.  &  S.  s  State  v.  Arnold,  13  Ired.  (35  N.  C.) 
(Pa.)  266,  269;  Blackburn  v.  Craw-  Law,  184;  Keith  v.  N.  H.  &  N.  R.  Co., 
fords,  3  Wall.  (70  U.  S.)  189;  Lavin  v.  140  Mass.  175. 

Aid  Soc,  74  Wis.  349.  «  Stephenson  v.  Arnold,  28  Ind.  278; 

i  Kennedy  v.  Doyle,  10  Allen  (93  Bird  v.  State,  104  Ind.  384. 

Mass.),  161.  7  Underbill  on  Evid.,  g  53. 

*  Cheever    v.    Congdon,   34    Mich. 


§  557.]  GIFTS   TO   CHILDREN   AS   PURCHASEKS.  T2{> 

are  surviving  at  the  death  of  the  testator,^  The  children  of  the 
testator  who  are  living  at  his  death  take  a  remainder,  which 
vests  in  them  at  once ;  and,  in  case  of  the  death  of  any  of  them 
before  the  death  of  the  life  tenant,  his  or  her  share  descends 
to  his  or  her  heirs  or  personal  representatives,  and  is  also  de- 
visable. The  same  rule  applies  to  the  word  "  surviving  "  where 
it  is  employed  in  a  devise  to  the  "  surviving  "  or  "  living  "  chil- 
dren of  A.,  whether  the  gift  is  immediate  or  whether  it  is  only 
to  be  distributed  after  the  termination  of  a  prior  life  estate.- 
Thus,  where  a  devise  was  to  A.  for  life,  with  remainder  to  the 
"  surviving  "  children  of  A.,  to  be  equally  divided  between  them, 
the  remainder  vested  only  in  the  children  of  A.  who  were  liv- 
ing at  the  death  of  the  testator,  and  was  not  subject  to  open 
and  let  in  after-born  children  of  A.* 

The  testator  may,  by  apt  words,  clearly  show  that  he  intends 
bv  the  use  of  the  Avord  "  survivin": "  or  "  livinof "  to  refer  to  the 
termination  of  a  prior  estate  created  by  him.*  Ko  particular 
form  of  language  on  his  part  is  necessary  to  show  that  he  means 
to  postpone  the  vesting  in  the  children  as  a  class  to  those  only 
w^ho  survive  the  termination  of  the  prior  estate.  Where  he 
gives  property  to  A.  "for  his  life,  with  a  remainder  to  his  chil- 
dren who  are  ^^living  at  his  death^""^  or  to  his  children  '■'■then 
living^""^  or  to  the  children  '■Hhen  surviving,''''^  or  uses  other 
language  which  clearly  shows  that  he  intends  only  those  ta 

1  Grimmer  v.  Friedrich,  4.'5  N.  E.  R  Spann,  26  S.  C.  5G1,  5G4  (1881),  2  S.  E. 

498,  1G4  111.  245;  Union  Mut.  Ass'n  v.  R  412. 
Montgomerj',  70  Mich.  587,  59.1;  For-        *  Ante,  §349. 

ter  V.  Porter,  50  id.  4-56;  Smith  v.  *Tlius,  to  ilhistrate.  Wliere  the  re- 
Black,  29  Ohio  St.  488,  498;  Anderson  maindt-r  was  to  the  five  ciiildren  of 
V.  Smoot,  Si^eer  (S.  C),  Eq.  (1844),  312;  C.  and  to  those  she  may  hereafter 
I^liard  V.  Connors,  10  Rich.  Eq.  (S.  C,  have,  who  may  be  then  lirintj,  that  is, 
18.59),  .389.  392;  Swinton  v.  Legare,  2  at  her  death,  it  is  contingent,  and  the 
McCord  E(i.  (S.  C,  1822),  440;  Frier-  children  living  at  her  death  take  all. 
son  V.  Van  Buren,  7  Yerg.  (15  Tenn.)  to  the  exclusion  of  the  diildren  of 
606,  613;  Satterfield  v.  Mayes,  11  a  child  who  died  during  C.'s  life. 
Humi)h.(30Tenn.).58. 60;  Wornockv.  Shanks  v.  Mills,  25  S.  C.  358,  362; 
Smith,  11  Humph.  (Tenn.)  47H;  In  re  Ringipiist  v.  Young,  112  Mo.  25,  20  S. 
Hubberfs  Estate,  6  Pa.  Dist.  It.  96.  \V.  R  1.59.    Cf.  Smith  v.  Secor,  157  N. 

-Stone  V.  Lewis'  Adm'r,  84  Va.  474,  Y.  402,  52  N.  E.  U.  179. 
5  .S.  E.  R  282;  Elx-rts  v.  Eberts,  42        eihuskins  v.  Tate,  25  Pa.  St.  (1855), 

Mo.  401.  249. 

M»tiibard   V.  Willis,  117   Muss.   13        "Wood  v.   Ihdiard.  25  N.  E.  H.  67, 

(18b8),    16   N.    E.    R    737;    Itejims    v.  151  Mass.  ;{24.  Holcomb  v.  Uiko,  24 

N.  .1.  I,.  C.Mi;,  (IH!). 


730 


LAW    OF    WILLS. 


[§  557. 


take  who  are  living  at  the  death  of  the  life  tenant,  those  in 
existence  at  that  date  will  form  the  class  of  children  among 
Avhom  the  property  is  to  go,  to  the  exclusion  of  the  heirs  of 
those  children  who  have  died  in  the  interval  between  the  death 
of  the  testator  and  the  death  of  the  life  tenant  whose  shares 
go  to  the  survivors.  This  is  true  whether  the  limitation  is  to 
the  children  of  the  life  tenant,^  or  to  the  children  of  the  testa- 
tor.- But  the  testator  may,  in  providing  for  those  children  who 
survive  the  termination  of  the  life  estate,  also  expressly  direct 
that  the  issue  or  heirs  of  any  children  who  may  die  during  the 
■existence  of  the  life  estate  shall  take  their  parent's  share.'   But 


1  Bethea  v.  Bethea  (Ala.,  1897).  22 
S.  R.  501;  Willielm  v.  Caldwell  (Iowa, 
1807),  71  N.  W.  R.  2U;  Hempstead  v. 
Dickson,  20  111.  (18G1),  193,  lOo;  Spear 
V.  Fogg,  87  Me.  132,  139;  Olney  v. 
Hull,  21  Pick.  (38  Mass.)  311;  Tliomp- 
son  V.  Ludington,  104  Mass.  193;  How- 
land  V.  Howland,  11  Gray  (77  Mass.), 
469;  Hill  v.  Rockingham,  45  N.  H.  270; 
Van  Tilburgh  v,  HoUinshead,  14  N.  J. 
Eq.  (18G1),  32,  85;  Slack  v.  Bird,  23  N. 
J.  Eq.  238;  Williams  v.  Chamberlain, 
ION.  J.  Eq.  373;  Paget  v.  Melcher, 
156  N.  Y.  399;  In  re  Allen,  151  N.  Y. 
243,  45  N.  K  R  554;  Smith  v.  Black, 
29  Ohio  St.  488,  498;  Haskius  v.  Tate, 
25  Pa.  St.  249;  Durant  v.  Nash,  30  S. 
C.  184,  9  S.  E.  R.  474;  Kansas  C.  L. 
Co.  V.  Hill,  3  Pickle,  589;  Schoppert 
V.  Gillman,  6  Rich.  (S.  C.)  Eq.  83; 
Dwight  V.  Eastman,  63  Vt  398,  20 
Atl.  R  398. 

-Ringquist  v.  Young,  112  Mo.  25, 
34,  20  S.  W.  R  159;  Coveny  v.  Mc- 
Laughlin, 20  N.  E.  R  165.  148  Mass. 
576.  577;  Den  v.  Sayre,  2  N.  J.  L.  598; 
Seddel  V.  Wills.  20  N.  J.  L.  223;  Ays- 
cough  V.  Savage,  13  W.  R.  373,  374; 
Drew  V.  Drew,  22  W.  R  314;  Wellock 
V.  Ostle,  21  W.  R  118,  27  L.  T.  (N.  S.) 
481;  Harvey  v.  Harvey,  3  Jur.  949; 
Hetlierington  v.  Oakman,  2  Y.  &  C. 
C.  C.  299;  Gill  v.  Barrett,  29  Beav. 
372,  375. 

3  Scott  V.  Guernsey.  48  N.  Y.  106. 
A  remainder  to  "  children  now  living, 


or  who  may  be  living  at  the  decease 
of  the  life  tenant,'"  is  vested  in  those 
who  are  alive  at  the  death  of  the 
testator.  Rood  v.  Hovey,  50  Mich. 
(1883),  595.  A  remainder  to  the  cliil- 
dren  of  A.  and  B.,  and  "  in  the  event 
of  their  death  to  the  cliildren  living 
at  the  time  of  their  death,"  vests 
only  on  the  death  of  both  A.  and  B. 
and  in  children  then  in  esse.  Appeal 
of  Commonwealth  Title,  Ins.  &  T.  Co., 
24  W.  N.  C.  35,  126  Pa.  St.  223  (1889). 
Where  one  of  the  conditions  of  a  re- 
mainder to  children  is  that  they  shall 
survive  the  life  tenant,  who  is  their 
parent,  the  remainder  is  not  only 
contingent,  but  is  non-transferable, 
and  a  purchaser  of  the  remainder 
under  execution  takes  no  title. 
Rovmdtree  v.  Roundtree,  26  S.  C.  450 
(1887),  2  S.  E.  R.  474;  Haward  v.  Pea- 
vey,  128  111.  430,  21  N.  E.  R.  503;  Put- 
nam V.  Story,  132  Mass.  207,  211; 
Nash  V.  Nash,  12  Allen  (Mass.),  345; 
Dunn  V.  Sargent,  101  Mass.  336;  Rob- 
inson V.  Palmer  (Mass.),  38  Atl.  R  10; 
Rosenau  v.  Childress,  111  Ala.  214,  20 
S.  R  95.  Where  the  reiuainder  is  to 
children  who  are  alive  at  the  death 
of  the  life  tenant,  with  a  proviso  that 
the  issue  of  a  deceased  child  shall 
take  the  parent's  share,  the  issue  take 
as  purchasers  and  not  by  descent 
from  their  parent.  Dunlai)  v.  Fant, 
74  Miss.  197,  20  S.  R  874. 


§  558.]  GIFTS   TO    CHILDREN   AS    rUKCHASERS.  731 

a  provision  for  the  children  of  the  testator  equally,  who  may 
then  be  living,  that  is  to  say,  at  the  termination  of  the  life 
estate,  and  to  their  heirs  and  assigns  forever,  does  not  include 
the  heirs  or  personal  representatives  of  those  who  die  during 
the  life  estate,  for  the  words  "  heirs  "  and  "  assigns  "  are  not 
words  of  substitution,  but  point  to  the  character  of  the  estate 
which  the  surviving  children  shall  take.^  So  where  the  devise 
was  expressly  to  the  children  of  B.  at  the  death  of  A.,  or  to  the 
issue  of  deceased  children  as  shall  then  be  living,  only  children 
living  at  the  death  of  the  life  tenant  were  permitted  to  take 
to  the  exclusion  of  the  issue  of  those  who  died  during  the  life 
estate.- 

§  558.  When  children  as  a  class  arc  to  he  ascertained  in 
the  case  of  a  remainder. —  Where  the  distribution  to  or  among 
children  is  to  come  after  a  prior  life  estate,  a  different  rule  is 
applicable  than  where  it  is  immediate;  for  if  the  distribution 
or  the  possession  of  the  property  devised  in  remainder  to  chil- 
dren is  not  to  be  made  or  enjoyed  until  a  period  has  elapsed 
subsequent  to  the  death  of  the  testator,  a  gift  to  children  as  a 
class  will  embrace  not  only  all  children  who  are  living  at  the 
testator's  death,  and  compose  the  class  at  that  time,  but  also 
all  who  are  born  before  the  period  of  distribution  arrives.  The 
rule  as  thus  stated  is  applicable  to  a  remainder  to  the  chikh'en 
of  some  person  other  than  the  testator  himself.  Thus,  suppose 
the  testator  shall  give  property  to  A.  for  his  life,  and  after  his 
death  to  the  children  of  A.,  in  remainder;  all  the  children  of 
A.  who  are  living  at  the  death  of  the  testator,  and  all  of  A.'s 
children  who  are  born  during  his  life,  will  constitute  the  class 
at  the  period  of  distribution.  And  the  same  rule  would  apply 
where  the  gift  is  of  a  remainder  to  the  children  of  B.  at  tlio 
death  of  A.,  or  the  children  of  tlie  testator  after  a  prior  life 
estate  to  be  enjoyed  by  his  widow.    If  the  gift  of  tlie  remainder 

1  Patchen  v.  Patchen,  121  N.  Y.  432,  to  those,  irrespective  of  the  fact  that 

24  N.  E.  I^  GO."!;  Hills  v.  liarnard,  2."}  the  death  occurs  duriiiK  tlie  hfo-tinio 

N.  E.  R  90,  \r,2  ^lass.  07;  C<j<.|kt  v.  of  the  testator.     Allen  v.  Callow,  3 

Macdonald,  K  K.  10  Kci- ~':>M.    Cf.  post,  Vcs.  2HU;    ] Mass  v.  Helms,  '.»;{  IViiii. 

gOOO.  100,  2;]  8.  W.  It.   100;  WaiiiwriKlit  v. 

i  Brown  v.  "Williams,  r,  li.  I,  (ISoT),  Sawyer,  l.'.o  Mass.  lOH.  22  N.  K.  It.  885; 

309,  :j1H;   Harv<-y   v.   Harvey.  .'J  Jur.  Smith  v.  Secor,  157  N.  Y.  402,  52  N.  R 

919.     A  <levis««  to  such  r  hildreri  of  ,\.  K.  179.     (Compare  the  cases  cited  oa 

who  are  living  at  his  death  will  go  "Survivorship,"  under  f;,^  .■}41-y55. 


^9.0. 


LAW    OF    WILLS. 


[§  558. 


is  a  present  gift,  that  is  to  say,  if  it  vests  a  present  interest,  the 
possession  only  l)eing  jiostponed,  all  the  cliiUlrcn  take  who  arc 
ifi  esse  at  tlie  (hvvth  of  the  testator,  and  they  will  take  vested 
interests,  subject  to  open  and  let  in  after-born  children  who 
come  into  bein^-  during''  the  existence  of  the  prior  life  estate; 
and  both  classes  will  compose  the  class  at  the  time  appointed 
for  distrilnition.  And  if  any  child  in  Avhom  the  remainder  has 
become  vested  dies  during  the  life  tenancy,  his  or  her  issue,  if 
any  survive  until  the  time  of  distribution,  will  takej9^r  st'u'_pes 
the  share  of  the  parent.^ 


1  Bull  V.  Bull,  8  Conn.  49;  Beckley 
V.  Lertingwell,  17  Atl.  R.  76G,  57 
Conn.  103;  Johnes  v.  Beers,  18  Atl. 
R.  100.  57  Conn.  295;  Nelson  v.  Poni- 
eroy,  29  Atl.  R.  534,  64  Conn.  257:  De 
Vaiighn  V.  :\IcLeroy,  10  S.  E.  R.  211, 
82  Ga.  687;  SieUlons  v.  Cockrell,  131 
III  653,  23  N.  E.  R  586;  Kelly  v. 
Gonce,  49  111.  App.  82;  Kilgore  v. 
Kilgore,  26  N.  E.  R.  56,  127  Ind.  276; 
Heilman  v.  Heilman,28  N.  E.  R.  310, 
129  Ind.  59;  Moores  v.  Hare  (Ind., 
1896),  43  N.  E.  R.  870;  Burnside  v. 
"Wall,  9  B.  Mon.  (48  Ky.)  321 ;  Arnold 
V.  Arnold,  11  id.  93;  Phillips  v.  John- 
son, 14  id.  172;  Lynn  v.  Hall  (Ky., 
1897),  43  S.  W.  R.  402;  Mercantile 
Bank  v.  Ballard,  83  Ky.  481;  Young 
T.  Robinson,  11  Gill  &  J.  (Md.,  1840), 
328;  Waters  v.  "Waters,  24  Md.  430, 
446;  Taylor  v.  Mosher,  29  Md.  443, 
455;  Barnum  v.  Barnum,  42  Md.  251, 
310;  Straus  v.  Rost,  67  Md.  465,  10 
Atl.  R.  74;  Devecmon  v.  Shaw,  16  Atl. 
R.  645,  70  Md.  219;  Demill  v.  Reid,  17 
AtL  R.  1014.  71  Md.  175;  Dulany  v. 
Middleton,  72  Md.  67,  19  Atl.  R.  146; 
Cox  V.  Handy,  78  ^Id.  lOS,  27  Atl.  R. 
227;  Winslovv  v.  Goodwin,  7  Met. 
(Mass.)  381;  Parker  v.  Converse,  5 
Gray  (71  Mass.),  336:  Shattuck  v.  Sted- 
man,  2  Pick.  (Mass.)  468;  Moore  v. 
Weaver,  16  Gray,  305;  Weston  v.  Fos- 
ter, 7  Met.  (48  Mass.)  297,  299:  Bow- 
ditch  V.  Andrew,  8  Allen  (91  Mass.), 
342;  Houghton  v.  Kendall,  7  Allen 
(Mass.),  72,  75;  !Merriam  v.  Simonds, 
121  Mass  198,  202;  Dorr  v,  Lovering, 


147  Mass.  530. 18  N.  E.  R  412:  Worces- 
ter V.  Worcester,  101  Mass.  132;  Mor- 
rill v.  Piiillips.  142  Mass.  240;  Dodd 
V.  Winship,  144  Mass.  401, 11  N.  E.  R. 
588;  Crosby  v.  Crosby,  5  Atl.  R.'907, 
64  N.  II.  77;  Van  Giesen  v.  Howard, 
7  N.  J.  Eq.  462;  Feit's  Ex'rs  v.  Van- 
atta,  21  N.  J.  Eq.  84,  86;  Ward  v. 
Tomkins,  30  N.  J.  Eq.  3,  4;  Parker  v. 
Hover,  42  N.  J.  Eq.  559,  9  Atl.  R.  217; 
Rhodes  v.  Shaw,  43  N.  J.  Eq.  430,  11 
Atl.  R.  116;  Van  Giesen  v.  White.  53 
N.  J.  Eq.  1,  30  Atl.  R.  331;  Cook  v. 
McDowell,  53  N.  J.  Eq.  351,  30  Atl.  R. 
24;  Thomae  v.  Thomae  (N.  J.,  1889). 
18  Atl.  R  355;  Huber  v.  Donahue,  49 
N.  J.  Eq.  125,  23  Atl.  R  495;  Budd  v. 
Haines.  52  N.  J.  Eq.  488,  29  Atl.  R. 
170:  Hanan  v.  Osborn,  4  Paige  (N.  Y., 
1834),  336,  342;  Van  Vechten  v.  Pear- 
son, 5  id.  512;  Kurst  v.  Patton,  4  Deni. 
(N.  Y.)  130;  Carpenter  v.  Schermer- 
horn,  2  Barb.  Ch.  314;  Williams  v. 
Conrad.  30  Barb.  524;  Jenkins  v. 
Freyer,  4  Paige,  53;  Tucker  v.  Bishop, 
16  N.  Y.  402,  404;  Teed  v.  Morton,  00 
N.  Y.  506:  Stevenson  v.  Lesley,  70 
N.  Y.  512,  517;  Nelson  v.  Russell,  31 
N.  E.  R  1008, 135  N.  Y.  137:  Bowditch 
v.  Ayrault,  33  N.  E.  R  1067, 138  N.  Y. 
222;  Campbell  v.  Stokes,  36  N.  E.  R 
811,  142  N.  Y.  23;  Nathan  v.  Hen- 
dricks, 34  N.  Y.  S.  1016,  87  Hun.  483; 
In  re  Haer,  41  N.  E.  R  702,  147  N.  Y. 
348;  Lo-sey  v.  Stanley,  147  N.  Y.  560, 
42  N.  E.  R  8;  In  re  Seaman's  Estate, 
147  N.  Y.  69,  41  N.  E.  R  401;  In  re 
Tienken,  131  N.  Y.  391,  30  N.  E.  R. 


§  558.] 


GIFTS   TO    CHILDBEX   AS    PUJRCHASEKS. 


733 


A  devise  to  the  cliildren  of  B.,  after  a  prior  life  estate  in  A., 
vests  in  the  children  of  B.  who  are  living  at  the  death  of  the 
testator  as  a  class,  subject  to  being  diminished  by  the  death  of 
any  of  them,  and  to  open  and  let  in  those  born  during  the  life- 


109,  15  N.  Y.  S.  470,  60  Hun,  417,  27 
Abb.  N.  C.  151;  Balen  v.  Youmans, 

20  N.  Y.  S.  656;  Smith  v.  Lawrence, 

21  X.  Y.  S.  379, 66  Hun,  362;  Balen  v. 
JacqueUn,  23  N.  Y.  S.  193,  67  Hun, 
311;  In  re  Collins,  24  N.  Y.  S.  226,  70 
Hun,  273;  In  re  Hall's  Estate,  33 
N.  Y.  418,  11  Misc.  R.  433;  Cogginsv. 
Flythe,  18  S.  E.  R  96.  113  N.  C.  102; 
Vanhook  v.  Rogers,  3  Murpliey  L.  & 
Eq.  (7  N.  C.)  178;  Meares  v.  Meares,  4 
Ired.  L.  (26  N.  C,  1844),  192.  196;  Rob- 
inson V.  McDiarmid,  87  N.  C.  455; 
Mining  v.  Batdorf,  5  Pa.  St.  503; 
Herr's  Estate,  28  Pa.  St.  467;  Wun- 
der's  Estate,  13  Phila.  409;  Appeal  of 
Pennsylvania  Co.  (Pa.,  1887),  10  Atl. 
R  130;  In  re  Thomans  Estate,  29 
Atl.  R  84,  161  Pa.  St.  444;  Snyder's 
Estate,  180  Pa.  St.  70;  Spencer  v. 
Greene.  17  R  L  727,  24  Atl.  R  742; 
Chafee  v.  Maker,  24  Atl.  R  773,  17 
R  I.  739;  McGregor  v.  Toomer,  2 
S*robh.  (S.  C.)  L.  51 ;  Crossby  v.  Smith, 
3  Rich.  Eq.  (S.  C.)  244;  Wessenger  v. 
Hunt,  9  id.  459;  Bridgewater  v.  Gor- 
don, 2  Sneed  (35  Tenn.,  1855),  5;  Alex- 
ander V.  Walsh,  3  Head  (40  Tenn.), 
493;  Owens  v.  Dunn,  85  Tenn.  131: 
McClung  V.  McMillan,  1  Heisk. 
(Tenn.)  655;  Franklin  v.  Franklin,  91 
Tenn.  119;  Rowlett  v.  Rowlett,  5 
Leigh  (Va.,  1834),  20,  28;  Hansford  v. 
Elliott,  9  Leigh  (Va.,  1837),  79,  94; 
Hauiletts  v.  Humletts"  Ex"r,  12  Leigh 
(Va.),  350;  Toole  v.  Perry,  80  Va.  681, 
7  S.  E.  R  118;  Martin  v.  Kirby,  11 
GrdtL  (Va.)  07,  71;  Stone  v.  Nichol- 
son, 27  id.  10,  18;  Chapman  v.  Chap- 
man, 90  Va.  409. 18  S.  E.  R  913;  Scott 
V.  West,  03  Wis.  529,  561;  Emmet  v. 
Emmet,  49  U  J.  Ch.  21,  '2>i  W.  K.  401 ; 
Clarke's  Estate.  3  Do(Je.x,  J.  «&  S.  1 1 1 ; 
Stewart  v.  Shenield,  13  l-:a.st,  526; 
Fuulding's    Truhts,    20    lieu  v.    203; 


3Ioore  V.  Bailey,  43  L.  T.  (N.  S.)  730, 
29  W.  R  171;  Comberbach  v.  Perryn, 
3  T.  R  484;  Shortbridge  v.  Creber,  5 
Barn.  &  Cress.  866,  8  Dow.  &  R3'.  718; 
Walker  v.  Shore,  15  Ves.  122,  124;  In 
re  Hiscoe,  Hiscoe  v.  Waite,  48  L.  T. 
(N.  S.)  510;  Turner  v.  Hudson,  10 
Beav.  222,  224;  Viner  v.  Francis,  3 
Bro.  C.  C.  658;  Hill  v.  Chapman,  1 
Ves.  405;  Doe  v.  Martin,  4  T.  R  39; 
Osbury  v.  Bury,  1  Ball  &  Beat.  53; 
Middleton  v.  Messenger,  5  Ves.  136; 
Oppenheim  v.  Henry,  10  Hare,  441; 
Baldwin  v.  Rogers,  3  D.  M.  &  G.  649; 
Locke  V.  Lambe,  L.  R  4Eq.  372;  Gim- 
blett  V.  Purton,  L.  R  13  Eq.  427; 
Clarke  v.  Clarke,  8  Sim.  59;  White- 
bread  V.  Lord  St.  John,  10  Ves.  152. 
Where  a  testator  devises  a  remainder 
among  the  children  of  his  son,  share 
and  share  alike,  and  the  son  has  four 
children  at  the  death  of  the  testator, 
they  will  take  a  vested  share  in  the 
remainder,  though  only  two  survive 
the  son.  Adams  v.  Wool  man,  26 
Atl.  R  451,  50  N.  J.  Eq.  516.  A  de- 
vise to  A.  for  life,  then  to  B.  for  life, 
and  a  remainder  to  B.'s  children,  cre- 
ates a  remainder  in  B.'s  children  liv- 
ing at  the  death  of  the  testator, 
which  is  vested  and  may  bo  assigned 
at  any  time  during  tlie  lives  of  the 
two  life  tenants.  Loring  v.  Carne.s, 
19  N.  E.  R  343,  148  Mass.  223.  A  i)ro- 
vision  by  whicli  land  is  to  bo  divided 
among  children  after  the  decease  of 
tho  life  tenant  creates  a  vested  re- 
mainder in  the  children.  In  ro 
llurlbutt's  Estate,  40  N.  E.  R  220.  145 
N.  Y.  535.  A  remainder  to  living 
children  or  their  heirs  has  been  hi'ld 
to  create  a  vested  remainder  which 
can  bo  dovisod  or  a.ssigiied.  Ramsjiy 
v.  De  Romor,  20  N.  Y.  S.  M.!,  (15  Hun, 
212;  Coto  v.  Von  Boniihorst,  41  I'a. 


734:  LAW   OF  WILLS.  [§  550. 

time  of  A.,  l)ut  not  to  include  any  of  the  children  of  B.  born 
after  the  death  of  the  life  tenant.'  A  gift  to  all  the  children 
A.  may  now  have,  or  may  hereafter  have,  to  be  distributed  to 
them  after  the  death  of  B.,  will  include  all  of  A.'s  children 
who  are  living  at  the  testator's  death,  and  those  who  are 
born  during  the  life-time  of  the  life  tenant,  but  not  those  born 
afterwards.-  And  generally,  a  child  of  the  testator  who  is 
himself  a  legatee  for  his  life  has  the  right  to  claim  as  one  of 
a  class  under  a  devise  of  the  residue  to  the  children  of  the  tes- 
tator.' And  his  issue  may  claim  as  purchasers  where  a  re- 
mainder in  the  same  property  in  which  he  had  a  life  estate  is 
devised  to  the  testator's  children  and  the  issue  of  deceased 
children.* 

The  rule  that  a  future  gift  to  children  Avill  include  all  who 
compose  the  class  at  the  death  of  the  testator,  and  also  those 
who  come  into  existence  during  the  prior  estate,  applies  to  an 
estate  which  is  to  vest  after  a  determinate  period,*  and  to  one 
which  is  to  terminate  upon  the  bankruptcy  of  the  life  tenant.® 
The  fact  that  there  is  a  gift  over  upon  the  decease  of  any  of 
the  children  who  are  named  as  remainderman,  under  his  or 
her  majority,  does  not  alter  the  application  of  the  rule.^  And 
where  the  life  tenant  has  the  power  to  appoint  to  his  children 
at  the  termination  of  the  life  estate,  he  may  include  all  those 
living  at  the  death  of  the  testator  and  those  coming  into  being 
during  his  life.^ 

§  551).  Gifts  to  chiklren  "born"  or  "to  be  born."— Chil- 
dren born  after  the  making  of  the  will  are  usually  presumed  to  be 
included,  where  the  gift  is  payable  immediately  to  the  children 

St  (1861),  243;    Hovey  v.  Nellis,  57  <  Bell  v.  Sraalley,  18  AtL  R  70,  45 

N.  W.  R.  255,  98  Mich.  (1893),  374;  X.  J.  Eq.  478. 

Licht  V.  Licht,  id.;  Cooper  v.  Hep-  5 Ballard  v.  Ballard,  18  Pick.  (35 

burn,  15  Gratt.  (Va.)  551.  558.  Mas?.)  41 ;  Bailey  v.  Wagner,  2  Strobli. 

lAyton  V.   Ayton,  1   Cox,  Ch.  R.  (S.  C,  1848),Eq.  1;  Meyer  v.  Eisler,2» 

327;  Nodine  v.   Greenfield,  7  Paige  Md.  28. 

Ch.  (N.  Y.,  1839),  544,  548;  Paul  v.  ^  in  re  Smith,  2  John.  &  Hem.  594, 

Compton,  8  Ves.  375,  380.  GOO;  In  re  Ayhvin's  Trusts,  L.  R  IG 

2  Pickett  V,  Southerland,  1  Winst.  Eq.  585,  590. 

(60  N.  C,  1SG4),  G7;  Ward  v.  Cooper,  "Berkeley  v.  Swinburne,  16  Sim. 

69  Miss.  789,  794,  13  S.  R  827:  Sbinn  275,  286,  L.  R.  13  Ch.  D.  489,  491,  492; 

V.  Motley,  3  Jones'  Eq.  (N.  C.)  490,  Davidson  v.  Dallas,  14  Ves.  576;  Kev- 

494  ern  v.  Williams.  5  Sim.  171. 

3  Jennings  v.  Newman,  10  Sim.  sjiarvey  v.  Stracey,  1  Drewry,  73, 
219.  122. 


§  559.]  GIFTS   TO   CHILDREN   AS    rCKCHASERS.  T35 

of  A.  This  presumption  is  applicable  where  the  testator  gives 
to  his  own  children  simj)liciter} 

Sometimes  a  testator  qualifies  a  devise  to  children  by  the 
words  "  born,"  or  "  to  be  born,"  or  "  begotten  "  or  "  to  be  be- 
gotten." The  meaning  of  these  words  depends  upon  the  char- 
acter of  the  devise.  AVhere  the  gift  vests  immediately  at  the 
testator's  death,  and  there  are  no  children  then  in  existence,  it 
will  go  to  children  who  may  be  born  at  any  time  thereafter  be- 
fore final  distribution.-  And  where  there  are  children  living 
at  that  date,  a  provision  for  children  "  Jor;?,"  or  '■^to  he  horn" 
will  include  all  children,  whether  born  he/ore  or  after  the  death 
of  the  testator,  provided  they  shall  be  born  prior  to  the  time 
when  the  estate  is  to  vest  in  possession  or  to  be  distributed.^ 
But  none  born  after  the  period  of  distribution  or  vesting  has 
arrived  will  be  permitted  to  take  as  "  children  born  or  to  be 
born,"  unless  the  will  provides  for  such  children  "  as  shall  here- 
after be  born  during  the  life  of  their  parents,"  when  the  devise 
will  include  all  children  who  answer  this  description,  whether 
born  before  or  after  the  period  of  distribution.^ 

In  the  absence  of  anything  in  the  will  to  the  contrary,  the 
words  "  to  be  born,"  "  to  be  begotten,"  "  which  shall  be  born," 
or  "  which  he  shall  have,"  are  7iot  presumed  to  refer  exclusively 
to  children  that  are  born  after  the  date  of  the  will,  but  will  in- 
clude as  well  all  those  who  answer  to  the  description  of  chil- 
dren at  the  date  of  the  execution  of  the  will.*  Accordingly, 
where  there  was  a  devise  of  a  remainder  to  the  "children  of 
A*  and  B.  lavfulbj  to  he  heffotte?i"  all  chiklren  living  at  tlie 
date  of  the  will,  with  those  afterwards  begotten,  were  per- 
mitted to  take,  for  the  words  "lawfully  to  be  begotten,"  or 
"to  be  born,"  have  ordinarily  a  more  direct  reference  to  the 
root  of  descent,  and  to  the  legitiraac}'^  of  birth,  than  to  the  time, 

'Matchwick  v.  Cock,  3  Ves.  GOO,  Eddowcs  v.  Eddowes,  30  Boav.  G03; 

611;    Freemantle  v.  Taylor,  15  Vea  Wliitbread  v.  Lord  St.  Jolin,  10  Ves. 

363;  Butler  V.  Ix>we,  10  Sim.  317.  152;  Ileisse  v.   Markland,   3   Rawle 

^HotalitiK  V.  Marsh,  132  N.  Y.  29,  (Pa.).  275.    C/.  Ringroso  v.  BrauiliuTii, 

30  N.  R  It  2J9;  Weld  v.  Bra<ll)ury,3  2  Co.x,  3«l. 

Vernon,  705;  Burke  v.  Wilder,  1  Mc-        MIotalinj?  v.  i^farsli,  133  N.  Y.  20. 

Lcfid  (S.  C.)  E<i.  551.  30  N.  E.  U.  2 1»;  Scott  v.  Scarboroui,'li, 

»Mo;,'K    V.   MoKk'.  1    M<r.   r,5l.  f'.IH;  1  B.-av.  15(5. 
OfKK-h  V.  rjrxx-h.ll  Jk-av.  5(55.3  I).  .M.  &        4  I'rowilt  v.  Kodiiian,  37  N.  Y.  12. 
G.  300;  Napier  v.  Howard,  3  Ua.  202; 


736  LAW   OF   WILLS.  [§  5G0. 

Avli(>lluT  past  or  fuliuv,  at  wliirli  the  birth  is  to  take  ph\cc.^ 
Hut  tlic  context  of  the  will  may  clearly  show  that  a  provision 
for  children  ''  that  may  be  born,"  or  "  to  be  born,"  is  exclusively 
aj)})licable  to  future-born  children,  to  the  exclusion  of  those  who 
may  be  in  existence  at  the  date  of  the  execution  of  the  will.- 
So,  where  the  legacy  was  to  the  children  "  that  hereafter  may 
he  horn  to  ^1.,"  the  rule  that  all  children  born  to  A.,  wliethcr 
born  bc^fore  or  after  the  death  of  the  testator,  are  included,  may 
not  apply,  for  it  was  the  intention  of  the  testator,  evidently,  to 
ctmline  the  expression  to  such  as  may  be  born  to  A.  prior  to 
the  death  of  the  testator.  Under  a  power  to  B.  to  appoint 
anioni^-  the  children  of  A.  "«5  may  hereafter  he  horn"  B.  is  con- 
lined  in  his  selection  to  the  children  of  A.  born  after  the  execu- 
tion of  the  will,  and  in  his  (B.'s)  own  life-time.  B.  cannot 
execute  the  power  in  favor  of  children  of  A.  who  are  born  after 
B.'s  death.* 

§  500.  Distribution  amongst  children,  when  to  be  per 
capita. —  In  the  case  of  a  legacy  to  the  children  of  the  testa- 
tor as  a  class,  or  to  the  children  of  A.  as  a  class,  simpliciter, 
whether  the  vesting  is  immediate  or  remote,  they  will  take 
per  capita}  So,  also,  in  the  case  of  a  devise  to  surviving  chil- 
dren and  their  issue,  the  distribution  will  be  j)^^  capita,  the 
children  and  the  issue  of  deceased  children  who  are  living  at 
the  period  of  distribution  forming  together  one  class.*  And 
the  same  rule  as  to  distribution  has  been  held  applicable  to  the 

1  Almack  v.  Horn,  1  Hemm.  &  M.  twenty-one,  but  if  A.  should  become 
630;  Co.  Lit.  206.  insolvent  tlien  his  interest  was  to 

2  Early  v.  Benbow,  2  Coll.  342;  cease  as  if  he  were  dead,"  it  was  lield 
Early  v.  Midilleton,  14:  Beav.  453;  tliat,  as  the  interests  in  the  children 
affirmed  in  Townsend  v.  Early,  1  were  not  contingent  remainders,  but 
De  Gex.  Fislier  &  Jo.  1,  28  Beav.  428.  executoiy  devises,  they  took  effect, 

^  Paul  V.  Compton,  8  Ves.  375.   But  upon  forfeiture  by  bankruptcy,  not 

a  provision  for  the  children  of  A.  that  only  in  favor  of  children  who  might 

he  "  noic  lias  or  may  hereafter  have,"  then  be  alive,  but  in  favor  of  all  born 

to  be  paid  to  them  respectively  as  during  his  life,  though  subsequent  to 

each  attains  majority,  includes  those  the  forfeiture.     Blackman  v.  Fysh 

who  A.  has  born  to  him  both  before  (1892),  3  Ch.  209. 

and  after  the  death  of  the  testator  *  Burnet's  Ex'r  v.  Burnet,  30  N.  J. 

during  his  life.    Haggerty  v.  Hocken-  Eq.  (1897),  595;  Benedict  v.  Ball,  38 

berry,  52  N.  J.  Eq.  354,  30  Atl.  R.  88.  N.  J.  Eq.  48. 

"Where  property  was  to  go  to  A.  for  5  in  re  Fox's  Will,  35  Beav.  163,  13 

life  and  then  to  his  children  "horn  W.  R.  1013. 
or  to  he  horn   who   should   attain 


§§  561,  562.]     GIFTS    TO    CUILDEEX   AS    rUKCHASERS.  To7 

case  of  a  power  of  appointment  among  children  and  the  issue 
of  children  at  the  termination  of  a  life  estate  in  the  donee.^ 
But  a  remainder  after  a  life  estate  in  A.,  to  her  ^'■children  ivho 
may  le  the  heirs  of  her  lody^^  at  her  death,  will  be  divided  j'>d/' 
stirpes  by  reason  of  the  force  of  the  word  "  heirs,"  referring  to 
children  who  are  alive  at  the  death  of  the  life  tenant.^ 

§  561.  Direction  for  aii  equality  of  division  favors  distri- 
bution per  capita. —  AVhere  the  testator  devises  property  to 
one  or  more  individuals  and  to  the  children  of  another,^  or  to 
the  children  of  A.  and  B.,  with  an  express  direction  that  the 
division  shall  be  "??j/  eq^ual  shares^''  '•'' equally ^''  or  ^'' share  and 
share  alike"  he  will  Ije  presumed  to  have  intended  that  the 
distribution  among  all  the  legatees,  both  named  and  as  classes, 
shall  be  ^;(?;'  cajjita.*  Thus,  where  there  is  a  residue  directed 
to  be  equally  divided  by  A.  and  B.  and  the  children  of  C,  in 
equal  portions,  share  and  share  alike;*  a  remainder  to  the  tes- 
tator's three  nieces  and  their  children,  to  be  e'qualJy  divided 
among  them,  share  and  share  alike  ;'^  or  to  A.,  B.  and  C, 
equally  to  be  divided,  and  to  the  heirs  of  those  who  are  dead,'' 
the  division  will  he  j^er  capital 

%  50*^.  Whetlier  the  distribution  amongst  the  childreu  of 
several  persons  sliall  be  per  stirpes  or  per  capita.  — Whether, 
in  the  case  of  a  devise  to  the  children  of  two  or  more  persons 
named,  the  distribution  shall  ho, per  capita  ov per  stirpes  among 
all  the  children  living  at  the  date  of  distribution,  has  been  a 
much  litigated  question,  and  one  upon  which  the  cases  are  not 
■wholly  harmonious.     The  decision  of  this  question,  of  course, 

1  In  r«  "White's  Trast,  John  (Eng-  Sliinn  v,  :Motle}%  3  Jones'  Eq.  (50  N.  C.) 

lish;,  O.-jG.  4'JU;  Patterson  v.  Patterson,  ;j  i.l.  208; 

-Houghton    V.   Kendall,  7    Allen  McMaster    v.   McMaster,    10    (iratt. 

(Mass.),  7y.    See  i)Ost,  ^  023  et  seq.,  as  (Va.)  27.3;  Emerson  v.  Cutler,  14  Pick, 

to  the  mode  of  distribution  among  108;  Perdrian  v.  Wells,  5  Rich.  (S.  C.) 

heirs.  Eci.  20;  Barksdale  v.  Macbeth,  7  Rich. 

3 Stevenson  v.  Leslie,  70  X.  Y.  r)12.  (S.  C.)  Eq.  i;i2. 

*Keanv.I{oe,2IIarring.  lO:};  West  ^Culp   v.  Lee.  14   S.  E.  R.  74,  100 

V.  Rassiiian,  III  N.  R  R.  001.  i;r>  ind.  N.  C.  (1801).  UT."). 

;i78;  Hig'.-low  V.  Clapp,  100  Mass.  88,  t^  Kuhn      v.     Wchster,      13      Gray 

01;  Farmer  v.  Kiml»all,  40  N.  II.  WiTt;  (Mass.).  W. 

Iiud<l  V.  llain<!s,  20   Am.   It.   170,  52  T:\i,„.,,i,y    y.   Harvey,  4   Edw.  Ch. 

N.  J.  E(i.  4S0;  Johnston   v.  Knight,  (N.  V.)  i;il. 

2;J  S.  E.  R.  02,  117  N.  C.  122;  II dl  v.  ^Cf.  idsuj/uat,  g  023. 
Spruitt,  4  Ircd.  Eq.  (30  N.  C.)  i?  1 1    '  li;- 
47 


TOS  LAW   OF  WILLS.  [§  5G2. 

depends  upon  the  intention  of  tlie  testator.  If  lie  intends  that 
all  the  chiklren  of  the  several  persons  named  as  parents  shall 
take  as  constitutinc^  one  class,  then  tlie  distribution  will  ha  per 
capita.  If  the  parents  are  related  to  him  in  the  same  degree, 
as  wliere  the  parents  are  his  sons  ami  daughters,  the  nature 
of  the  presumption  which  favors  an  equality  of  division  will 
tend  to  establish  a  division  among  the  children  j>tv'  capita.  On 
the  other  hand,  if  the  devise  is  to  the  children  of  persons  bear- 
ing different  degrees  of  relationship  to  him,  or  to  his  own  chil- 
dren, and  also  the  children  of  a  stranger,  it  may  be  presumed 
that  he  made  this  disposition  having  in  mind  the  law  of  de- 
scent and  the  rules  regulating  the  distril)Ution  of  the  estates 
of  deceased  persons  who  die  intestate.  Where  the  intention 
of  the  testator  is  in  doubt  upon  the  question  of  the  mode  of 
division  amongst  children  of  persons  named,  the  American 
cases  favor  a  distribution  j^^?/*  .f^/;y?t'5,  while  the  English  cases 
favor  a  distribution  per  capita.  If  the  testator  shall  provide 
that  the  distribution  among  the  children  shall  be  share  and 
share  alilce^  or  in  eqiial  shares,  or  equally,  etc.,  his  language  is 
conclusive.  But,  in  the  absence  of  such  express  directions,  we 
must  resort  to  the  general  rules  as  deduced  from  the  cases. 
"Where  there  was  a  provision  of  property /b?'  the  children  of  A. 
and  for  the  children  of  J?.,  it  was  held  that  the  distribution 
should  \)Q per  capita  amongst  all  the  children.^ 

A  devise  in  the  following  language,  "  I  give  my  property  to 
be  divided  hetween  the  children  of  A.  and  B.  share  and  share 
alike,"  will  generally  be  construed  to  require  a  division  2)er 
capita  among  all  the  children  of  the  persons  named.  The 
courts  will  substitute  the  word  "  among "  for  "  hetween^''  and 
the  division  will  not  be  hetween  the  different  stocks  represented 
by  the  persons  named,  but  among  tJce  children  of  all  the  indi- 
viduals named  as  forming  one  class.^ 

1  Macknet  v.  Macknet,  2-t  N.  J.  Eq.  Beav.  638;  Amson  v.  Harris,  19  Beav. 

293;  Brown  v.  Brown,  6  Bush  (Ky.),  210.     The  fact  that  there  is  a  limita- 

648,  651 ;  Nichols  v.  Denny,  37  !Miss.  tion  over  to  the  survivor  of  the  chil- 

59,  64;  Weld  v.  Bradley,  2  Vt.  705;  dren,  in  the  case  of  a  devise  to  the 

Lockhart  v.  Lockhart,  3  Jones'  (N.  C.)  children  of  A.  and  the  children  of  B., 

Eq.   20j;    Roper  v.   Roper,  5  Jones'  is  not  material  in  this  connection. 

(N.  C.)  Eq.  16,  17;  Dugdale  v.  Dug-  Hill  v.  Bowers,  120  Mass.  135. 

dale,  11  Beav.  402;  Dowding  v.  Smith,  2  Walker   v.   Moore,   1   Beav.   607; 

3  Beav.  541;  Pattison  v.  Pattisou,  19  Armitage  v.  Williams,  27  Beav.  346 j 


§  5G2.]  GIFTS    TO    CUILDREX    AS    FUKCnASF.ES.  739 

In  the  case  of  a  deviso  of  real  property  or  a  legac}"  to  A. 
and  B.  for  their  joint  llve^,  in  which  case  they  will  take  as  joint 
tenants,  or  in  a  case  where  they  take  as  tenants  in  common,  if 
there  is  inserted  an  express  direction  creating  a  survivorship,  as 
where  there  is  a  remainder  over  to  either  of  them  upon  the 
death  of  the  other,  with  a  provision  that,  on  the  death  of  the 
survivor  of  the  several  life  tenants,  the  remainder  shall  go  to 
or  be  distributed  among  the  children  of  the  life  tenants,  all 
those  children  living  at  the  death  of  the  testator,  too-ether  with 
those  born  during  the  joint  life  tenancy,  with  the  issue  of 
children  deceased,  will  constitute  the  class  of  children  who  are 
to  take  at  the  death  of  the  survivor,  and,  being  thus  a  class, 
the  children  and  issue  will  take  jyer  capita}  On  the  other 
hand,  where  the  gift  is  to  A.  and  B.  equally  for  their  respect- 
ive lives,  or  as  tenants  in  common,  with  a  remainder  to  the 
children  of  each,  though  with  no  express  direction  in  what  pro- 
portion these  children  are  to  take,  the  children  of  A.  or  B.  will 
tAkesper  stirpes  at  once  on  his  death,  though  there  is  a  direction 
that  the  property  is  to  be  equally  divided  among  the  children.- 
The  share  of  either  life  tenant  on  his  death  will  go  to  all  his 
children  who  may  be  then  living;  and,  if  the  remainder  was 
vested,  to  the  issue  or  heirs  of  deceased  children,  irrespective 

Lugar  V.  Harmon,  1  Cox,  250;  Weld  A.  and  the  children  of  B.,  neither  of 

V.  Bradbury,  2  Vernon,  70."i;  Barnes  whom   would  have  inherited   from 

V.  Patch,  8  Ves.  G04:  Lady  Lincoln  the  testator,  requires  a  distvihution 

V.  Pelham,   10  Ves.   IGG;   Brown  v.  per  stirpes.    In  re  Ihrie's  Estate,  29 

Brown,  7  Gill  (Md.,  1848),  347;  Wel>  Atl.  R  750,  162  Pa.  St.  309.     See  also 

ster  V.  Foster,  7  Met.  (4-8  Alass.)  97;  11  L.  R.  A.  305. 

Stokes  V.  Tilly,  9  N.  J.  Eq.  130.     The        »  Smith  v.  Streat field,  1  Mer.  358, 

case  of  Alder  v.  Beale,  11  Gill  &  J.  361;  Stevenson  v.  Gullan,  18  Beav. 

(Md.)  123,  in  wliich  the  devise  was  to  590,  592;  Malcolm  v.  Martin,  3  Bro. 

the  children  of  my  sister  A.  and  their  C.  C.  50,  57;  Swabey  v.  Goldie,  L.  R. 

heirs,  and  tlie  children  of  my  sister  1  Ch.  D.  380,  384;  Parker  v.  Clarke,  (i 

B.   and  their  heirs;    and  Mayer   v.  De  Gex,  M.  &  G.  lOt,  110;  Bi'j,'ley  v. 

Hover,  81    Giu   308.  7   S.   E.   R.   5(i2.  C<K)k,   3   Drew.   662.   667;  I'arlitt   v. 

where  tlie  devis<3  was  to  l>e  divided  llember,  L.  R.  4  E(i.  443;  Taalfo  v. 

between  the  diildren  of  II.  and  M.  Conmcf,  10  II.  L.  Cas.  64;  Waltera 

"sliare  ami  Hliitri'.  alih',"  iirn  coittnt;  v.    Crutclicr,    15    B.    Moii.    (Ky.)   2; 

but  the  latter  case  was  dearly  do-  (.'heeves  v.  Bl'II,  lJones(N.  C.)  E<i.  234, 

cided  erroneously,  ami  in  tlie  fcjrmer  237;  BiiLht'a  v.  Bcthea  (Ala.,  1897),  22 

the  circumstances  and  lan^ua>?o  of  S.  li.  5(il;  Rliod<«  Island   llos.  Tr.  Cu 

the  will  were  too  Hp(!fial  to  make  it  v.  I'cckham  (li.  1.).  38  Atl.  H.  1001. 
a  precedent.     A  din^rtion  to  divide        -Flinn  v.  Jenkins,  I  ColL  305. 
the  residue  between  the  chiliircii  uf 


T40  LAW  OF  WILLS.  [§§  563, 5G4. 

of  the  niunlxM'  of  cliildivn  the  other  life  tenant  may  have  had, 
or  may  have  livinu'  at  that  dato,  or  may  leave  him  surviving 
at  bis  sul.)se(|uent  (h'atli.^ 

§  5(W{.  AVhere  chihlroii  take  by  substitution  the  distribu- 
tiou  >vill  be  per  stirpes. —  Where  the  gift  to  chiklren  is  not 
an  oriii-inal  "ift,  but  is  substitutional  to  a  class  in  its  character, 
as  it  would  bo  in  the  case  of  a  gift  to  A.  and  B.,  and,  in  the 
event  of  the  death  of  either  of  them,  to  their  children,  the  dis- 
tribution will  be^^<?;'  stlrjjes?  That  is  to  say,  the  fund  or  prop- 
erty will  be  divided  into  shares  equal  in  number  to  the  original 
legatees  named,  and  the  children  of  any  deceased  legatee  will 
take  their  parent's  share  equally  among  them.'  And,  gen- 
erally, where  there  is  a  gift  to  individuals,  coupled  with  a  direc- 
tion that,  in  the  case  of  the  death  of  any  one  or  more  of  them, 
the  children  or  issue  of  the  deceased  shall  take  the  parent's 
sliare,  the  distribution  among  the  issue  or  children  will  hQ  per 
stirpes,  according  to  the  amount  which  the  parents  w^ould  have 
received  if  they  had  survived.^ 

§  5()4.  Mode  of  distribution  wliere  the  devise  is  to  indi- 
viduals and  the  children  of  anotlier. —  The  rule  of  distribution 
in  the  case  of  a  devise  to  A.  individually,  and  to  the  children 
of  B.  as  a  class,  differs  in  England  from  the  rule  in  America. 
According  to  the  English  cases,  wdiere  a  direction  is  found  in 
the  will  that  property  shall  be  divided  among  or  between  A., 
an  individual,  and  the  children  of  B.  as  a  class,  and  nothing 

iWilles  V.  Douglass,  10  Boa  v.  47;  311;  In  re  Seebeck's  Estate.  Ol  N.  E. 
Bradshaw  v.  Melling,  19  Beav.  417;  R.  (1803^,459,  140  N.  Y.  241:  In  re 
Saril  V.  Saril,  23  Beav.  87;  Turner  v.  Howard's  Estate,  30  N.  Y.  S.  684,  81 
Whittaker,  23  Beav.  196;  Archer  v.  Hun,  91;  Henderson  v.  Womack,  6 
Legg.  31  Beav.  187;  Pery  v.  White,  Ired.  Eq.  437,  441:  Davis  v.  Bennett, 
Gowp.  777;  Arrow  v.  Hellish,  1  De  31  L.  J.  Ch.  337,  8  Jur.  (N.  S.)  269; 
(iex  &  Smale,  355;  Coles  v.  Witt,  2  Price  v.  Lockley,  6  Beav.  180;  Burrell 
Jur.  (N.  S.)  1226;  In  re  Laverick's  v.  Baskerfield,  11  Beav.  525;  Con- 
Estate.  18  Jur.  304;  Wells  v.  Wells,  greve  v.  Palmer,  16  Beav.  435;Timins 
L.  R.  20  Eq.  342;  Taniere  v.  Pearkes,  v.  Stackhouse,  27  Beav.  434;  Shailer 
2  Sim.  &  St.  383.  v.  Groves,  6  Hare,  162;  Cowling  v. 
2  Compare  §§  353, 354.  Thompson,  19  L.  T.  (N.  S.)  242:  Arm- 
sCrozier  v.  Cundall  (Ky.,  1896),  35  strong  v.  Stockham,  7  Jur.  230. 
S.  W.  R.  546;  Hopkins  v.  Keazer.  89  ^  Ross  v.  Ross,  20  Beav.  645;  In  re 
Me.  347,36  Atl.  R.  615;  Slingluff  v.  Orton's  Trust,  L.  R.  3  Eq.  375;  Palmer 
Jones (Md.,  1S98),  39  Atl.  R.  872;  Ham-  v.  Crutwill,  8  Jur.  (X.  S.)  479.  Com- 
ilton  V.  Lewis.  13  Mo.  184,  188;  Coster  pare  ante,  §  354 
V.  Butler,  63  How.  Pr.  (N.  Y,  1881), 


§  564.] 


GIFTS    TO    CniLDKEN   AS   PUKCHASERS. 


T41 


indicates  whether  the  testator  intended  a  division  j9(?;'  stu'jyes  or 
per  cajnta,  the  division  or  distribution  shall  he  per  capita^  and 
A.  will  take  for  his  share  only  as  much  of  the  property  as  one 
of  the  children  who  form  the  class.  Cases  of  this  kind  usually 
occur  where  the  testator  has  provided  for  a  distribution  of  his 
property  to  his  son  A.  and  the  children  of  his  son  B.,  without 
indicating  in  what  proportion  the  property  is  to  be  divided. 
But  it  is  not  confined  to  such  cases,  and  will  include  the  chil- 
dren of  persons  who  are  not  related  to  the  testator  or  to  one 
another  in  any  way.^  In  America  the  general  rule  is  now  quite 
otherwise.  In  all  cases  where  there  is  a  devise  to  one  or  more 
individuals,  and  to  the  children  of  other  individuals  as  a  class, 
the  distribution  will  be  per  stupes,  even  where  there  is  a  direc- 
tion apparently  pointing  to  an  equality  of  division.  Thus,  where 
the  gift  is  to  A.,  B.  and  C.  and  the  children  of  D.,  the  property 
will  be  divided  into  four  equal  parts,  and  D.'s  children  will 
take  one-fourth  equally  among  or  between  them;  and  it  is  im- 
material that  the  persons  A.,  B.,  C.  and  D.  are  all  the  children 
of  the  testator.- 


1  Dowding  v.  Smith,  3  Beav.  541; 
Rickabee  r.  Garwood,  8  Beav.  579; 
Butler  V.  Stratton,  3  Bro.  C.  C.  307; 
Paine  v.  Wagner.  12  Sim.  184;  Will- 
iams V.  Yate,  1  C.  P.  Coop.  177, 1  Jur. 
576;  Hj'de  v.  Cullen,  1  Jur.  100; 
Payne  v.  AVebb,  L.  R.  19  Eq.  20;  Black- 
ler  V.  Webb,  2  P.  W.  383;  Linden  v. 
Blackmore,  10  Sim.  G26.  Early  Amer- 
ican cases  sustaining  this  rule  of  a 
division  per  capita  are  Benson  v. 
Wright,  4  Md.  Cli.  279;  My  res  v. 
Myres,  23  How.  Pr.  (N.  Y.)  410,  414; 
Gilliam  v.  Underw(X)(l,  3  Jones'  (48 
N.  C.)  Eq.  100.  101;  Diii)ont  v.  Ilutch- 
insrm,  10  Ricli.  Eq.  (S.  C.)  1,  3;  Con- 
ner V.  Johnson,  2  Hill,  E(i.  (S.  C,  1837), 
43. 

-  Lyon  v.  Acker,  33  Conn.  222;  Ray- 
mond v.  Hillihouse,  45  Conn.  407; 
ILuiH  v.  Atkinson,  20  [).  C.  537;  Eraser 
V.  Dillon,  3  S.  E.  R  095.  08  Ga.  474; 
White  V.  Holland,  92  Ga.  210, 18  S.  E. 
li.  17;  Henry  v.  Thoman,  20  N,  R  K. 
519.  118  Ind.  23;  W.-lls  v.  Hiitton,  43 
N.  W.  R  708,  77  3Iich.  129;  Clarke  v. 


Lynch.  4G  Barb.  (N.  Y.)  69;  Vincent 
V.  Newhouse,  83  N.  Y.  505;  Ferrer 
V.  Byne,  18  Plun,  111,  81  N.  Y.  281; 
Fissel's  Ai)peal,  27  Pa.  St.  55:  Lach- 
land's  Heirs  v.  Downing,  11  B.  Mon. 
32.  34;  Minter's  Ajipeal,  40  Pa.  St.  111. 
In  England  in  every  case  where  proi> 
erty  is  devised  to  A.  and  B.  and  their 
children,  or  to  a  class  of  persons,  as 
sisters  and  brothers  and  their  chil- 
dren, all  will  take  concurrently  and 
the  distribution  will  be  per  capita; 
parents  anil  children  being  included 
as  members  of  the  same  class.  Cun- 
ningham V.  Murray,  1  De  Ge.\  & 
Smale,  300;  Abbay  v.  Howe,  1  Do 
Gex  &  S.  470;  Northcy  v.  Strange,  1 
P.  W.  340;  Law  v.  Tliori),  4  Jur.  (N.  S.) 
447.  27  L.  J.  Ch.  049,  and  cases  cited 
ante,  p.  741.  note  1.  In  Pennsyl- 
vania this  rule  was  a])pli(>d  to  a  de- 
vise to  individuals  and  their  childrrn, 
when'  it  was  evident  that  thf  word 
'•(•hildn-n  "  was  a  word  of  piuchasu 
and  not  a  word  of  limitat  ion.  and  not 
employed  to  jtoint  out  the  (]ualily  or 


V42  LAW   OF   -WILLS.  [§  5G5. 

§  505.  Erroneous  statoinciit  of  the  mniiber  of  cliildren. — 

If  the  testator,  in  providing  for  the  cliildrcn  of  anotlier,  and 
even  where  the  gift  is  to  his  own  children,  states  the  number 
of  cliihlren  he  wishes  to  benefit,  and  the  number  which  is  thus 
stated  is  less  t/iini  the  actual  numher  of  child reti,  the  court  has 
power  to  correct  his  mistake.  Where  the  number  is  under- 
stated, all  the  children  will  take  the  gift,  upon  the  very  reason- 
able presumption  that  the  understatement  was  unintentional 
and  inadvertent,  and  that  it  did  not  indicate  an  intention  to 
discriminate  among  the  children.'  If  this  construction  and  cor- 
rection are  not  resorted  to  and  permitted,  the  provision  for 
children  incorrectly  enumerated  will  be  void  for  uncertainty. 
And  the  presumption  of  a  mistake  is  recognized  as  readily 
where  the  gift  is  to  the  children  of  the  testator  as  where  it  is 
to  the  children  of  another;  for,  though  a  man  is  more  likely  to 
Ivuow  how  many  children  he  has  than  he  is  to  be  acquainted 
with  the  size  of  another's  family,  still  he  may  make  a  mistake 
in  enumerating  them  as  well  in  the  one  case  as  in  the  other. 
Where  the  testator  gave  a  specific  legacy  to  "each  of  his  four 
children"  where  he  had  five,^  to  each  of  the  "  three  children  of 
his  sister,"  ^  to  the  "  two  daughters  of  T.  in  equal  shares,  and  if 
either  should  die,  then  over,"  *  to  each  of  the  daughters  of  T.,  and 
if  hoth  or  either  should  die,  by  which  language  the  testator 
clearly  indicated  that  he  believed  that  T.  had  onlv  two  daugh- 
ters,'^ and  in  each  case  the  person  mentioned  as  the  parent  had 
one  more  child  or  daughter  than  was  stated  in  the  will,  all 
were  permitted  to  take.*^ 

quantity  of  the  estate  that  the  parent  Odell,  1  Ba.  &  Be.  449,  3  Dow.  61; 

is  to  take.     In  re  Mcintosh's  Estate,  Overton  v.  Bannister,  4  Beav.  205. 

27  Atl.  R.  1044,  158  Pa.  St.  528:  Ap-  i  Cf.  ante,  ^i  475,  476. 

peal  of  Mclntosli,  27  Atl.  R.  1047, 158  2  Procter's  Estate,  2  Pa.  Co.  Ct.  R. 

Pa.  St.  528;  Appeal  of  Robert  G.  3Ic-  474. 

Intosh,  id. ;  In  re  Mcintosh's  Estate,  ^Xomkins  v.  Tomkins,  2  Ves.  564; 

27  Atl.  R.  1048,  158  Pa.  St.  528;  Ai>  Garvey  v.  Hibbert,  19  Ves.  125;  Per- 

peal  of  John  S.  Mclntosli,  id.     But  kins  v.  Fladgate,  41  L.  J.  Cli.  681,  L. 

the  general  rule  under  which  the  dis-  R.  14  Eq.  54,  20  W.  R.  589. 

tribution  is  to  be  per  capita  will  not  ^Stebbing  v.  Walkey,  2  Bro.  C.  C. 

be  applied  to  a  devise  to  A.  and  the  85;  1  Cox,  Ch.  250;  Spencer  v.  Ward, 

children  of  B.,  where  the  testator  ex-  L.  R.  9  Eq.  509,  18  W.  R.  358,  22  L.  T. 

pressly    provides  that,   until   distri-  (N.  S.)  702. 

bution.  the  income  is  to  be  divided  5  Scott  v.  Fenoulhett,  1  Cox,  Ch.  79. 

among  the  children  per  sh'?7)cs.  Brett  •'See  also  Mathews  v.  Foulshaw,  13 

V.   HortoD,   4   Beav.   239;    Crone  v.  W.  R.  1141,  where  a  testator  having 


I  565.]  GITTS    TO    CHILDREN   AS    PUKCHASEES.  743 

"Where  the  testator  directs  a  fund  to  be  divided  among  sev- 
eral children,  the  number  of  whom  he  incorrectly  overstates, 
the  incorrect  number  will  be  wholly  rejected  and  the  fund  will 
be  divided  among  or  between  the  actual  number  of  children.* 
Thus,  where  a  gross  sum  was  given  to  the  five  daughters  of  A., 
who  had  only  one  daughter  at  the  date  of  the  execution  of  the 
will  and  also  at  the  death  of  the  testator,  she  was  permitted 
to  take  all,  though  A.  had  four  sons  at  both  periods.- 

The  fact  that  the  testator  knows  the  exact  number  of  the 
children  of  A.  at  the  date  of  the  will  does  not  seem  to  be  ma- 
terial, or  to  be  sufficient  to  prevent  a  division  among  those 
who  are  actually  the  children,  where  the  numbers  disagree. 
So  where  the  testator  bequeaths  a  legacy  to  each  of  the  t/wee 
children  of  A.,  knowing  that  A.  had  nine  children,  it  was  held 
that  all  the  children  were  entitled.'  Whether  the  testator, 
knowing  that  at  the  date  of  the  will  a  person  has  a  specilied 
number  of  children,  to  which  number,  described  as  ^^7ioio  liv- 
ing,^  he  gives  a  fund,  will  include  children  born  after  the  date 
of  the  will,  has  been  variously  determined.*  If,  however,  from 
the  context  it  can  be  ascertained  wJiich  of  the  children  the  tes- 
tator intended  to  henefit,  where  he  has  given  property  to  chil- 
dren of  persons,  iinderstating  their  nuinher,  the  rule  will  not 
be  applied.  It  is  only  applied  where  the  devise  would  be  void 
for  uncertainty.  Accordingly  where  a  testator  gave  a  legacy 
to  the  two  grandchildren  ol'  A.,  who  had  three  grandchildren, 
adding  that  they  lived  at  X.,  and  only  tuoo  of  them  lived  at 

ten  grandcliildren  gave  property  to  but  onlj'  disposed  of  seven   shares, 

his  nine  grandchildrea.  The  divLsioii  into  eight  siiaros  was 

'Lawton  v.  Hunt,   4  Strobh.   Eq.  disregarded,  and  a  division  into  sovea 

(S.  C,  18.j0),  1.     The  same  rule  would  shares  decreed.     Berkeley  v.  Pulling, 

seem  to  be  applicable  wiiere  there  is  1  Kass.  490.     But  an  incorrect  enu- 

pecuniary  legacy  to  each  child.  nieration  of  a  class  will  not  be  re- 

2  Lord  Selsey  v.  Lord  Lake,  1  Beav.  jecteil  unless  it  appears  to  be  the  in- 

15,    See  al.so  Carthcw  v.  Enraght,  20  tention  of  the  testator  to  benefit  the 

Week.  R  74;};  Thoin()Son  v.  Young,  wiiole  class.    In  ro  Stej)henson  (18'J7), 

2.1  Md  (1860),  4."iO;  Shepard  v.  Wright,  1  Ch.  7.1 

C   Jones'  (5U   X.   C.)   Eq.  22.      A   di-  3i)a„ieU  v.    Dani.'ll,  3    Dedcx  & 

vision  of  a  fund   into  eight  cfpial  Sin.  '.\.Vl. 

fihares   was   nunlo   by   the   testator,  ■•  Yeats  v.  Yeats,  10  Iit«av.  170;   iiut 

who  then  dis|M)sed  of  thfin  unmng  see  ro/(/r'/.  Smith's  Trusts,  L.  K.  it  C'lu 

the  children  of  A.  atnl  li.    Tosonielio  1).  117;  Sheror  v.   Bishop,  4  Bro.   C 

gave  two  shares,  and  to  others  one,  C  'j"!. 


741  LAW   OF   WILLS.  [§  5CG. 

the  place  montionod,  his  bounty  was  confined  to  these  two.' 
A  simihxr  rule  of  construction  would  ap])ly  where  the  provision 
was  for  my  four  nephews  and  niece,"  —  namely,  A.,  B,,  C. 
and  1).;  or  for  (.-hildrcn  of  a  certain  person,  naiit<l</,  and  then 
some  are  sjUH-ilicaily  naiued;'  to  my  nine  children  who  are 
named,^  and  the  actual  number  of  nieces  or  chiUlren  exceeds 
the  number  enumerated.  In  such  case  only  those  actually  named 
will  lake;  and  the  number  will  be  rejected  as  inaccurate  and 
superlhious. 

§  5()G.  Construction  of  provision  for  a  devise  over  in  case 
loiiatee  dies  without  children. —  A  provision  that  in  the  case 
of  the  "death  of  A.  c/uldlcss,"  or  "without  child reti"  an  estate 
which  has  been  given  to  him  for  life  shall  go  to  B.,  is  extremely 
ambiguous.  A  testator  may  mean  that,  if  A.  shall  die  without 
children  survicinrf  him,  tha  estate  is  in  that  case  to  go  over. 
Then,  assuming  that  the  word  "children  "  was  used  in  its  pri- 
mary meaning,  if  all  the  children  who  have  been  born  to  A. 
are  dead  at  the  death  of  the  life  tenant,  their  issue  will  not 
answer  to  the  description,  and  the  devise  over  to  B.  will  go 
into  effect. 

On  the  other  hand,  if,  by  the  death  of  A.  "  loithout  children  '* 
or  "  childless, ^^  the  testator  meant  A.'s  death  vnthout  having  had 
a  child  horn  to  him,  it  is  not  material  that  A.'s  children  shall 
not  survive  their  parent;  for,  if  the  remainder  is  given  to  his 
children,  it  vests  on  their  birth,  subject  to  open  and  let  in  after- 
born  children,  and  the  shares  of  those  who  die  before  the  death 
of  the  life  tenant  will  go  to  their  issue  or  to  their  heirs.  But 
a  devise  over  in  the  event  of  the  death  of  the  primary  devise 
"childless"  or  "  without  children"  will  presumptively  be  re- 
garded as  meaning  without  leaving  a  child  surviving  him.^     In 

1  Wrif^litson    v.    Calvert,    1  Jo.   &  23  Atl.  R.  45;  McLeod  v.  Dill,  9  Fla. 

Hem.  2.j0.  (1860),  427.    A  remainder  to  B.,  com- 

^Glanville  v.  Glanville,  83  Beav.  ing  after  a  devise  to  A.,  and  '"if  A- 

302.  should   have  children,  then  to  her 

3  In  re  Hull's  Estate,  21  Beav.  314.  cliildren;  "   but    if  she    should    die 

*  Zimmerman  V.  Briuer,  50  Pa.  St.  '-cliildlesSi"  then  to  B.,  is  a  contin- 

535.  gent  remainder,  which  is  defeated  it 

5  Mathews  v.  Hudson,  81  Ga.  (1888),  A.  shall  die  leaving  children  her  snr- 

120,  7   S.   E.   R.  286;  Richardson   v.  viving.     Furnisli  v.  Rogers,  30  N.  E. 

Richardson,  80  Me.  (1888),  585,  592;  R.  989,  154  111.  569. 
Barney  v.  Arnold,  15  R  L  (1885),  78, 


§  5GG.]  GIFTS    TO    CHILDKEX   AS    rCRCHASERS.  Y45 

an  early  case  where  the  devise  was  to  A.  and  B.,  and  if  either 
of  them  "(?/(?  without  chihlren,"  then  to  the  survivor,  the  court 
so  held.^  JPrimarily  it  is  clear  that  the  words  "  leaving 'chil- 
dren "  obviously  point  to  the  period  of  the  parent's  death.'- 
Thus,  a  gift  to  C  on  tlie  death  of  A.,  "leaviug^^  no  cliilcl  or 
children  her  surviving,  is  valid  where  A.  had  live  children  who 
died  unmarried  and  in  her  life-time} 

And  this  rule  of  construction  is  doubtless  the  correct  one 
where  the  gift,  for  example,  is  to  a  parent,  and  if  he  shall  die 
^^leavinff"  issue  or  children,  then  to  his  issue  or  children;  or 
in  the  case  of  an  executory  devise  to  such  children  as  "  A.  may 
leave."  "  Leaving  "  cannot  here  be  construed  "  having  had,"  and 
for  this  reason  only,  those  children  who  actually  survive  their 
parent  will  constitute  the  class  who  are  to  take,  to  the  exclu- 
sion of  the  issue  or  the  heirs  of  those  who  have  predeceased 
him.*  Where  a  devise  was  to  A.  for  life,  and  if  she  leave  chil- 
dren., then  among  those  children,  with  a  gift  over  in  case  any 
child  died  under  twenty-one,  it  was  held  that  the  heirs  of  a 
child  who  attained  twenty-one,  but  who  died  in.  the  life-time 
of  the  parent,  took  no  share.^ 

Yery  frequently,  however,  the  words  ^'loithout  leaving  chil- 
dren "  will  be  construed  as  co-extensive  and  s^'^nonjnnous  with 
'■'■without  having  had  children^  Thus,  where  the  testator  has 
given  property  to  the  parent  for  his  life,  with  a  remainder  to 
his  children,  in  such  form  as  to  give  them  a  vested  interest  at 
their  birth,  or  at  the  attainment  of  a  particular  age,  with  a 
limitation  over  in  the  case  of  the  parent's  death  without  leaving 
children,  "leaving"  will  be  construed  "having  children"  or 
"  having  had  children ; "  and  the  gift  to  the  children  becomes 
absolutely  vested  in  them  as  soon  as  they  are  born,  and  in  con- 

1  Hughes  V.  Layer,  1  P.  W.  (1718),  v.  Savage,  K  R.  10  Cii.  A  pp.  :^r^:^,  .jd,*. 

.W4;  Thickness  v.  Liege,  3  B.  P.  C.  504;    Young    v.   Turner,    1    Jiest  & 

Toinl.  'MW  Smith,   .>■>().     A   reniainiier    over   iu 

-2  Jurinan  on  "Wills,  p.  200.  tlio  case  of  the  deatii  of  tiie  life  ten- 

»In  re  llarulctt,  I^  K.  :}m  C'li.  D.  183,  ant,  "leuviiuj  no  lairs  of  the  body," 

M  Ij.  T.  (N.  S.)  014,  30  W.  H.  r,0!l.  relates,  of  course,  to  him  leaving  no 

*  Wingravo  V.  Palgrave,  1  P.  W.  401,  heirs  of  that  character  at  the  date 

402;  Kimherley  v.  Tew,  4  Drewry  &  of  his  death.     Read  v.  Snell,  2  Atk. 

War.  13J),  l.")0;  In  re  Watson's  Trusts,  042.  047;  post,  g  844  et  seq. 
L.  R.  10  Kq. :{'{;  Sheflleld  v.  Kennett,        6SIm*(Iii'I<1  v.  Kennett,  4  De  Gex  & 

4  iJe  (m'X  &  Jo.  .VJ3,  .V.M;  Hythewa  Jo.  .VJ3.  T)!) I ;  Williams  v.  Haythorno, 

V.  Pythesea,  23  L,  J.  Ch.  1001;  Jeyes  L.  R  0  Cli.  .\i.i).  7«2. 


710 


LAW    OF    WILLS. 


[§  507. 


sequence,  if  any  die  leaving  cliildrcn,  tlic  grantlcliiklren  will 
take.' 

§  5G7.  Children  on  ventre  sa  mere. —  In  the  case  of  a  gen- 
eral devise  to  children,  and  perliaps  also  in  case  of  gifts  to 
relations,  next  of  kin,  etc.,-  it  is  a  rule  that  a  child  oi  ventre  sa 
mere  will,  by  a  fiction  of  the  law,  be  recognized  as  in  esse,  at 
least  where  his  being  in  esse  is  for  the  benefit  of  the  unborn 
child.'  A  distinction  was  made  by  some  of  the  early  English 
cases,  in  the  ap})lication  of  this  rule,  between  a  devise  to  chil- 
dren generally  and  a  devise  to  children  "  who  may  be  living  " 
at  a  particular  date.*     Subsequently,  however,  this  distinction 


1  Ex  parte  Hooper,  1  Drew.  2Gi,  2G8; 
In  re  Tlionipson's  Trusts,  5  De  Gex  & 
Sin.  GGT,  071;  Kenneily  v.  Sedgwick, 
3  Kay  &  J.  540;  Maitland  v.  Challie,  G 
Madd.  243;  ]Marsliall  v.  Hill,  2  Maule 

6  Sel.  COS;  White  v,  Higlit,  L.  K.  13 
Ch.  D,  751 ;  White  v.  Hill,  L.  R.  4  Eq. 
2G5,  2G9,  272;  Bryden  v.  Willett,  L.  R. 

7  Eq.  472,  47G;  Treharne  v.  Lay  ton, 
L.  R.  10  Q.  B.  459,  4G4  (1875);  Weak- 
ley d.  Knight  v.  Rugg,  7  T.  R.  322; 
Jamison  v.  McWliarter,  7  Houst. 
(Del.,  1885).  242,  253,  31  Atl.  R.  517; 
Schaefer  v.  Schaefer,  141  111.  337,  344, 
31  N.  K  R  13G.  Where  the  testator 
bequeathed  a  legacy  to  A.,  but  over 
to  B.  in  case  A.  "  should  die  leaving 
no  child  or  children,"  and  A.  married 
and  had  six  children,  it  was  held  that 
the  woi"d  "  leaving  "  was  to  be  taken 
as  equivalent  in  meaning  with  the 
words  "  having  had,"  and  that  at  its 
birth  each  cliild  took  an  interest, 
which,  at  its  death  before  payment, 
passed  to  its  personal  representative. 
]\Iale  V.  Williams,  48  N.  J.  Eq.  33,  21 
Atl.  R.  854.  Construing  a  legacy  to 
A.  in  case  she  should  have  legitimate 
children,  and  on  failure  of  such,  then 
over,  and  she  had  one  child,  who  died 
before  her,  it  was  held  she  took  abso- 
lutely on  the  birth  of  the  one  child. 
Wall  V.  Tomlinson,  IG  Ves.  413,  41G. 
Wliere  a  devise  is  to  "  A.  and  his 
bodily  heirs,  and  if  he  die  childless, 
tlien  over,"  it  is  clear  that  tlie  plain 


intent  of  tlio  testator  to  confer  an  es- 
tate on  A.  and  his  posterity  would  be 
defeated  if  the  devise  over  is  to  go 
into  elTect  when  A.  shall  die  leaving 
no  child  or  children  surviving,  but 
only  r/randeJiildren,  the  issue  of  de- 
ceased children.  Barney  v.  Arnold, 
15  R.  I.  78,  23  Atl.  R.  45;  McLeod  v. 
Dill,  9  Fla.  427. 

2  Gardner's  Estate,  L.  R.  20  Eq.  G47. 

3  Pet  way  v.  Powell,  2  Dev.  &  Bat, 
(N.  C,  1837),  Law,  308,  312;  Groce  v. 
Rittenberry,  14  Ga.  (1853),  234;  Riggs 
V.  McCarty,  8G  Ind.  352,  3G7;  Hall  v. 
Hancock,  15  Pick.  (32  Mass.)  255.  258; 
Harper  v.  Archer,  4  Sniedes  &  M.  (12 
Miss.,  1845),  99, 108;  Marsellis  v.  Tlial- 
himer,  2  Paige  Ch.  (N.  Y.)  35,  39; 
Jenkins  v.  Fryer,  4  Paige  Ch.  47,  53; 
Shinn  v.  Motley,  3  Jones'  Eq.  (N.  C.) 
490,  493;  Swift  v.  Duffield.  5  S.  &  R. 
(Pa.)  38,  40;  McKnight  v.  Read,  1 
Wliart.  (Pa.,  1835),  220;  Gross'  Estate, 
10  Pa.  St.  361;  1  Black.  Com.,  p.  130. 
"  It  is  the  general  rule  that  a  cliild  ni 
ventre  sa  mere  comes  witliin  the  ex- 
pression 'child  or  children,'  and  is 
included  in  a  trust  in  favor  of  chil- 
dren, whether  described  as  children 
in  esse,  living  at  the  death,  begotten 
and  to  be  begotten,  begotten  and 
born,  or  in  any  otiier  similar  way." 
Remarks  of  Hall,  V.  C,  in  Crook  v. 
Hill.  L.  R.  3  Ch.  D.  773. 

iNorthey  v.  Strange,  1  P.  W.  341. 


§  56T.] 


GIFTS    TO    CHILDKEX    AS    PUKCIIASEKS. 


m 


was  repudiated  in  chancery,  and  the  principle  laid  down,  which 
has  ever  since  been  strictl}'  adhered  to  both  in  Engkmd  and  in 
the  United  States,  that  the  same  rule  shall  apply  to  a  gift  to 
children  of  A.  living  at  his  death  or  at  any  other  date.^ 

Thus,  a  child  who,  at  the  death  of  A.,  his  father,  is  still  en 
ventre  sa  mere,  will  be  included  under  a  gift  to  the  children  of 
A.  "  horn  in  his  life-time^  -  And  in  a  recent  case  the  English 
courts  have  decided  that  a  child  en  ventre  sa  mere  will  take 
under  a  devise  to  "  issue  living  at  the  death,"  upon  the  argu- 
ment that  the  word  '"  issue,^'  to  the  same  extent  as  the  word 
"  child,"  does  not  of  necessity  imply  a  birth.' 

The  rule  as  to  the  capacity  of  children  en  venire  sa  mere  to 
take  is  recognized  where  a  power  to  appoint  among  children 
has  been  created,*  and,  of  course,  where  the  testator  gives  prop- 
erty to  tlie  children  of  another  as  well  as  to  his  own  children;  * 
and  in  the  case  of  a  gift  of  a  remainder,  vested  or  contingent, 
or  of  an  executory  devise,  to  children.** 

So  also  the  existence  of  a  child  en  ventre  sa  mere  at  the  ter- 


1  Clarke  v.  Blake,  2  Bro.  C.  C.  321, 
2  Ves.  673,  in  which  Peirson  v.  Gar- 
nett,  2  Bro.  C.  C.  47,  and  Freemantle 
V.  Freemantle,  1  Cox  Ch.  C.  248,  are 
overruled.  See  also  note  -,  supra. 
A  devise  to  grandchildren  as  a  class, 
'•  to  be  divided  equally  as  they  attain 
ticenty-five  years  of  age,"  includes  a 
grandchild  en  ventre  sa  mere  at  the 
death  of  the  testator,  though  one  of 
the  grandchildren  was  twentj'-five 
3-ears  old  at  that  time.  Cowles  v. 
Cowles  (Conn.),  13  Atl.  R.  414.  See 
also  Pearce  v.  Carrington,  L.  R.  8 
Cli.  App.  060;  To\vns.-iid  v.  Early,  3 
De  Gex.  F.  &  J.  1;  Miller  v.  Turner, 
1  Ves.  8.j;  Davidson  v.  Dallas,  14  Ves. 
570;  Scott  v.  Ihjward.  5  Mad.  332; 
Heath  v.  Heath,  2  Atk.  121;  1  Free- 
man, 244,  2'J3. 

2Trower  v.  Butts.  1  Sim.  &  Stu. 
181.  "  I  have  no  doubt  on  any  view 
of  this  case.  It  is  plain  from  the 
words  of  the  will  that  the  testator 
xneJint  all  the  fjiildn-n  that  his 
brother  sliould  li-avu  Ix-liiiid  him 
hhould  bo   beneliled;  but,  independ- 


ent of  that  intention,  I  hold  that  an 
infant  en  ventre  sa  mere,  who  bj-  the 
order  and  course  of  natui'e  is  living, 
comes  clearly  within  the  description 
of  children  living  at  the  time  of  his 
decease."  By  Eyre,  J.,  in  Doe  v. 
Clark,  2  H.  Bl.  399. 

3  In  re  Burrows,  13  Rep.  689,091, 
05  L.  J.  Ch.  52  (1895),  2  Ch.  497,  73 
L.  T.  148,  43  W.  R  683;  Thelluson  v. 
Woodford,  1  Wils.  105.  See  also  Culp 
V.  Lee,  109  N.  C.  675,  14  S.  E.  R.  74; 
Riiwlins  V.  Rawlins,  2  Cox,  425. 

*  In  re  Farncombe's  Trusts,  L.  R.  9 
Ch.  D.  052;  Beale  v.  Beale,  1  P.  AV. 
(1713),  244. 

8  Swift  V.  Duffield,  5  Serg.  &  R.  (Pa., 
1819),  38,40. 

«  Barker  v.  Pearce.  30  Pa.  St.  (1.S5S), 
173.  175;  Picot  v.  Armistead,  2  Ired. 
Eq.  (37  N.  C,  1842',  220,  231;  Stedfast 
v.  Nicoll.  3  Johns.  Cas.  (N.  Y..  1817), 
18;  Swift  V.  Dullteld,  sujn-a.  By  Stat. 
12  Car.  H,  c.  21,  ;in  infant  nt  voitre 
sa  virrc  may  have  a  guardian  aj*- 
]Miiiiti-d  for  him.  1  Black.  Com., 
p.  rj9. 


74t5  LAW    OF   -WILLS.  [§  507. 

mination  of  a  prior  pstato  may  be  suflicicnt  to  defeat  a  devise 
over.  Thus,  Avherc  the  testator  gives  property  to  A.  for  life, 
remain<ler  to  bis  cbiUlren,  and  on  faiUire  of  issue  tben  ovei',  if 
the  life  tenant  shall  die  leaving  a  posthumous  child  the  gift 
over  will  be  defeated.' 

A  child  €)i  ventre  sa  mere  Avill  not  l)e  regarded  as  a  child 
boi'u.  unless  he  is  in  fact  born  alive.  lie  will  be  ]:>r'nna facie 
])restuned,  from  the  ordinary  course  of  nature,  to  have  been  con- 
ceived nine  months  before  his  birth.  The  courts  will  take  ju- 
dicial notice  of  the  physiological  data  attending  the  conception 
and  the  birth  of  a  child,  though  they  have  the  right  to  con- 
firm and  refresh  their  knowledge  in  doubtful  cases  by  the  evi- 
dence of  physicians  and  other  experts.-  The  presumption  that 
a  child  is  conceived  nine  months  before  its  birth  is  not  con- 
clusive. So  also  if  the  child  is  born  dead,  or  in  such  an  early 
stage  of  pregnancy  as  to  be  incapable  of  living,  he  will  be  re- 
garded as  though  he  were  never  born  at  all,  and  the  estate  will 
not  vest  in  him.^ 

The  fiction  of  law  which  treats  a  child  en  ventre  sa  mere  as 
actually  born  is  usually  said  to  be  indulged  in  onh^  for  the 
purpose  of  enabling  the  child  to  take  a  benefit  himself,  and  in 
any  other  case  the  word  "born"  or  "living"  will  have  its  natural 
signification;*  for  the  presumption  of  the  birth  of  the  unborn 
infant  is  a  fiction  to  protect  his  rights  in  the  hope  and  expecta- 
tion that  he  will  be  born  alive  and  capable  of  enjoying  them. 
They  are  thus  preserved  for  him  and  not  for  others  in  antici- 
pation.*   Thus,  a  child  en  ventre  sa  mere  will  not  take  under  a 

iPearce  v.  Carrington,  L.  R.  8  Ch.  circumstances  of  the  case.   The  child 

969;  Laird's  Appeal,  85  Pa.  St.  339.  en  ventre  sa  mere  is  by  the  fiction  of 

-Hall  V.  Hancock,  15  Pick.  (Mass.)  law  presumed  to  be  born  at  the  date 

255,  257.  of  vesting.    If  his  mother  is  theyi  un- 

^Marsellis  v.  Thalhimer,  2  Paige  married  he  is  illegitimate,  though 

Ch.  (N.  Y.,  1830),  85,  39.    In  the  civil  she  afterwards  marries   before   his 

law  a  child  born  within  six  months  actual  birth,  so  that  when  he  conies 

of  conc-eption  was  conclusively  re-  into  the  world  he  is  legitimate.     In 

garded  as  though  not  born.     2  Inst,  re  Corlass,  L.  R  1  Ch.  Div.  460. 

483.     But,  at  the  present  day,  in  view  ■*  Blasson  v.  Blasson,  10  Jur.  (X.  S.) 

of  the  methods  by  which  the  life  of  a  113,  34  L.  J.  Ch.  18,  11  L.  T.  (N.  S.) 

prematurely-born  child  may  be  pre-  353,  13  W.  R.  112,  2  D.  J.  «fe  S.  665. 

served  by  the  employment  of  incu-  ^  Marsellis  v.  Thalhimer,  2   Paige 

bators.  the  presumption  woulil  be  one  (N.  Y.),  35,  39. 
of  fact  to  be  determined  upon  tlio 


§  56S.] 


GIFTS    TO    CIIILDEEN    AS    PURCHASEKS. 


r49 


devise  to  the  cliildron  of  the  testator,  Avliere  the  statute  pro- 
vides that  a  chihl  born  subsequent  to  the  execution  of  the  will, 
and  for  whom  no  provision  is  made  in  the  will,  shall  take  the 
sliare  a  child  would  have  taken  in  case  the  father  had  died  in- 
testate. The  courts  have  held  that  a  provision  for  "children" 
will  not  take  the  case  of  a  posthumous  child  out  of  tlie  statute.^ 
§  568.  Presumption  of  legitiiiiaey  —  Character  of  proof  of 
illegitimacy  of  loi^atee. —  In  the  absence  of  all  proof,  a  person 
claiming-  under  a  will  as  the  child  of  the  testator  will,  upon  his 
showing  that  he  was  born  of  a  woman  whom  the  testator  called 
his  wife,  be  prima  facie  presumed  to  be  a  legitimate  cliild.- 
The  same  presumption  of  legitimacy  is  of  course  recognized  in 
the  case  of  one  who  claims  a  gift  "  to  the  child  of  x\."  In  conse- 
Cjuence  of  the  existence  of  this  presumption  of  legitimacy,  the 
party  who  denies  that  the  claimant  is  a  legitimate  child  will 
have  the  burden  upon  him  of  proving  illegitimacy.  This  he 
must  do  bv  verv  strono-,  cogent  and  eonviiicin"'  evidence.  It 
was  the  rule  at  the  early  common  law  that  a  child  born  during 
coverture  was  conclusively  presumed  to  be  legitimate,  if  at 
that  time  the  husband  was  within  the  four  seas,  i.  <?.,  if  he  were 
either  in  Great  Britain  or  Ireland.  An  exception  to  this  rule 
was  made  only  where  the  husband  Avas  shown  to  be  actually 


A  devise  in  general  terms  to  the 
children  of  the  testator  will  not  in- 
clude a  posthumous  child  to  prevent 
liim  from  claimin-^  under  a  statute, 
as  a  child  omitted  from  the  will,  the 
sliare  of  the  father's  property  he 
would  have  taken  if  the  parent  had 
died  intestate.  Armistead  v.  Danger- 
field,  3  Munf.  (Va.,  1811).  20,  27;  Mc- 
Kniglit  V.  Read,  1  Wliart.  (Pa.,  1«;].")), 
2iy,  221.  See  ante,  g§  240-242.  In 
White  V.  Barber,  5  Burr.  270;i,  27UU, 
where  ti>e  testator.  ]»rovidiii;^  that  in 
case  his  wife  should  at  liis  dfath  he 
ewt'inie,  devised  proiwrty  to  such 
ciiild  or  childrrn,  a  child  ixjrn  aj'tiv 
th(i  e.xccution  of  the  will,  but  durin;? 
tiio  life  of  th(j  testator,  was  pcrniit- 
t«id  to  take,  U|K)n  the  K>°ounds  that 
tliiH  child  would  othcrwi.s<?  }m»  un- 
provided for.     ixiter  in  iJoe  d.  Blak- 


iston  V.  Haslewood,  10  C.  B.  544,  15 
Jur.  272,  20  L.  J.  C.  P.  89,  a  contrary 
decision  was  reached  and  the  former 
case  expressly  overruled.  In  the 
United  States  no  case  exactly  in 
point  can  be  founded,  thouf^h  under 
the  statutes  a  p;il  t  to  a  child  of  which 
the  wife  of  testator  may  be  eu- 
cciiite,  would  not  prevent  children 
born  during  his  life  from  taking  a 
share  of  his  estate  if  they  are  omit- 
ted from  the  will.  See  Burke  v. 
Wilder,  1  Mt^Cord,  Eq.  (S.  C.)  551; 
(«<M)ilfi'llow  v.  (jlooilfcllow,  18  Beav. 
;55t5,  ;J0;{;  Alleyne  v.  Alleyne,  2  Jo.  & 
I^it.  55M. 

-Caujolh*  V.  Pcrrie,  23  N.  Y.  105, 
107,  2(5  Barl).  177;  Van  Aernam  v. 
Van  Aernam,  1  Barb.  Ch.  (N.  Y., 
1H40),  375;  ("ross  v.  Cross, 3  Paige  Ch. 
(N.  Y.,  1832),  131). 


150 


LAW    OF    WILLS. 


[§  569. 


impotent.*  Tho  nilo  now  is  tluit  tho  presumption  of  the  legiti- 
mat'V  of  a  cliiUl  born  during-  coverture  may  be  rebutted,  though 
the  liusbanil  is  not  shown  to  be  out  of  Englantl."  If  access  be 
sliown,  meaning  thereby  an  oi)|)ortunity,  however  short,  for 
sexual  intercourse,  the  presumption  of  the  legitimacy  of  a  chihl 
born  during  coverture  is  very  strong.'  On  the  other  hand,  if 
non-access  existing  at  the  date  of  conception  be  shown  to  the 
satisfaction  of  the  court,  the  presumption  of  legitimacy  is  read- 
11 V  rebuttable,  even  though  the  parties  to  the  marriage  have 
ft)liabited  tiiereaftcr.''  And  generally  proof  of  the  absence  of 
the  husband  from  the  country,  if  ])i'olonged,  may,  by  showing 
the  absolute  impossibility  of  access,  raise  an  irresistible  pi'c- 
sumption  that  a  child  born  to  a  wife  during  coverture  is  ille- 
gitimate. 

§  569.  Competency  of  a  lnisl>an<l  or  wife  to  prove  legiti- 
macy,—  Neither  husband  nor  wife  can  testify  directly  or  indi- 
rectly to  any  fact  tending  to  prove  non-access  during  coverture,* 
even  where  the  woman  was  pregnant  before  her  marriage.® 
The  rule  of  exclusion  is  very  stringent  and  excludes  all  evi- 
dence, direct  or  collateral,  from  wliich  the  fact  of  non-access 
may  be  inferred.'^     The  fact  of  non-access  must  be  established 


11  Black.  Com.  4o7;  Coke  Lit.  244. 
But  in  tlie  early  days  of  the  present 
century,  the  rule  establishing  this 
presumption  was  substantially  modi- 
fied. Foxcroffs  Case,  1  Rolle  Abr. 
359. 

2Pendrell  v.  Pendrell.  2  Stra.  925; 
Wright  V.  Hicks,  12  Ga.  (185:3),  155; 
Morris  v.  Davies,  5  CI.  &  Fin.  163; 
Keg.  V.  Murrey,  1  Salk.  122. 

3  Plowes  V.  Bossey,  31  N.  J.  Ch.  G81; 
Vernon  v.  Vernon,  6  La.  Ann.  242; 
Woodward  v.  Blue,  107  N.  C.  407.  In 
tlie  Banbury  Peerage  Case,  1  Sim.  & 
Stu.  153,  the  court  held  that  cliiidren 
who  were  conceived  during  cover- 
ture, and  while  the  parties  to  the 
marriage  cohabited,  would  be  con- 
clusively presumed  to  be  legitimate, 
though  it  was  proved  that  the  wife 
had  been  guilty  of  adultery. 

<  Bullock  V.  Knox,  96  Ala,  195,  11 
S.  R  339;  State  v.  Worthingham,  23 


:Minn.  528,  534:  Wright  v.  Hicks,  13 
Ga.  155;  Herring  v.  Goodson,  43  Miss. 
392,  396:  Cross  v.  Cross,  3  Paige  Ch. 
139;  Vetten  v.  Wallace,  39  111.  App. 
390,  397;  Dean  v.  State,  29  Ind.  483, 
485;  Pittsford  v,  Chittenden,  58  Vt. 
51. 

5  Cope  V.  Cope.  1  M.  &  R.  269;  Com. 
V.  Shepherd.  6  Binney  (Pa.,  1814),  283, 
285;  Mink  v.  State,  60  Wis.  583,  585, 
19  N.  W.  R.  445.  The  fact  that  either 
party  to  the  marriage  is  dead  does 
not  alter  this  rule.  Tlie  modern  stat- 
utes renioving  common-law  disquali- 
fications uiX)n  witnesses  do  not  re- 
move this  one.  Tioga  County  v.  South 
Creek  Township,  75  Pa.  St.  433. 

•"Page  V.  Dennison,  1  Grant  Cas. 
(Pa.,  1854),  377. 

''  "  Testimony  of  the  wife  even  tend- 
ing to  show  such  fact  or  of  any  fact 
from  which  such  non-access  could  bo 
inferi'ed,  or  of  any  collateral  fact  con- 


§  569.]  GIFTS   TO    CniLDKEX   AS    PUKCHASEKS.  751 

by  other  evidence.  It  may  be  proved  that  the  husband  was 
absent  from  his  home  at  the  date  on  which  the  chikl  was  cbn- 
ceived.  When  it  is  proved  that  husband  and  wife  did  not  live 
together  at  the  date  of  conception,  and  couki  not  have  had 
sexual  intercourse  at  that  date,  the  presumption  of  legitimacy 
is  overcome.  And  if  it  bo  proved  that  the  husband  has  been 
absent  from  the  country  for  a  period  which  is  longer  than  the 
period  of  gestation,  as  where  the  parties  had  separated  years 
before  and  had  since  resided  in  cities  widely  separated,  the  facts 
of  non-access  and  of  illegitimacy  may  be  regarded  as  conclu- 
sively established.^  The  declarations  of  either  a  husband  or 
wife  are  admissible  after  his  or  her  death  to  prove  legitimacy, 
or  the  contrary,  by  any  evidence  not  tending  to  show  access  or 
non-access,  such  as  the  fact  or  date  of  birth,-  or  on  the  question 
of  marriage.*  If  the  fact  of  non-access  has  been  satisfactorily 
proved  by  the  evidence  of  other  witnesses,  the  wife's  confession 
of  adultery  may  properly  be  received  in  corroboration.^  So 
if  there  is  some  evidence  of  non-access  or  the  reverse,  the  treat- 
ment of  a  child  by  its  parents,  its  recognition  or  non-recogni- 
tion by  them  and  by  other  members  of  the  family,  the  fact  that 
the  father  provided  for  its  support  and  education  as  a  member 
of  his  family,  are  all  relevant. 

nected  with  the  main  fact,  is  to  be  Boykin  v.  Boykin,  70  N.  C.  262,  264; 

scrupulously  kept  out  of  the  case;  Pittsford  v.  Chittendon,  58  Vt.  49; 

and  such  non-access  and  illegitimacy  Cross  v.  Cross,  3  Paige  (N.  Y.),  139; 

must  clearly  be  proved  by  other  tes-  Dennison  v.  Page,  29  Pa.  St.  420;  Eg- 

timony."     Questions  such  as  "  Wlio  bert  v.  Greenwalt.  44  Mich.  245;  Cor- 

was  with  you  on  a  certain  date?  "  or  son  v.  Corson,  44  N.  H.  587. 

"Where  was  your  Imsband  on  that  -Blackburn  v.  Crawfords,  3  Wall, 

date?"  are  particularly  objectionable.  (U.  S.)    194;    Caujolle   v.  Ferric,   23 

1  Rex  v.LufTe,  8  East,  193;  ILiworth  N.  Y.  104,  105,  107  et  seq. 

V.  fiill.  30  Ohio  St.  (1870).  027,  028;  » Caujolle  v.  FerriC^,  supra. 

Watts  V.  Owen,  02  Wis.  512;  Ilerriug  *  Cross  v.  Cross,  3  Paige,  141. 
V.  Goodson,  43  Miss.  (1870),  392,  390; 


CHAPTER  XXYI. 


GIFTS  TO  ILLEGITIMATE  CHILDREN. 


§  570.  By  a  devise  to  "chiKlren,"  le- 
gitimate childreu  ouly  are 
meant. 

571.  "Wlien  a  gift  to  "children" 

generally  will  include  ille- 
gitimate children  where 
there  are  no  others. 

572.  Parol  evidence  to  sliow  that 

the  testator  meant  illegiti- 
mate childreu. 

573.  Tlie  idontilication  of  the  chil- 

dieu  by  name. 


§  571.  Tlio  recognition  of  iilegitiniate 
cliiidren  by  the  testator. 

575.  AVlien  illegitimate  children 
may  take  with  legitimate 
children  as  a  class. 

57G.  Testamentary  provisions  for 
Huljorn  illegitimate  chil- 
dren. 

577.  Provisions     for     illegitimate 

children  en  ventre  xa  mere. 

578.  The  elTect  of  .judicial  decree 

legitimatizing    illegitimate 
children. 


§  570.  By  a  devise  to'^  children,"  legitimate  children  only 
are  meant. —  In  the  absence  of  evidence  of  a  contrary  intention 
it  is  conclusively  settled  that  only  legitimate  children  are  en- 
titled to  take  under  a  provision  giving  property  to  children 
simjyliciter.  AVhatever  the  word  may  be  indicating  kindred, 
whether  children,  issue,^  descendants,  sons,  or  daughters,-  it  will 
be  generally  taken  to  include  only  tliose  persons  Avho  are  legiti- 
mate children,  issue,  etc.  It  is  as  though  the  word  "  legitimate  " 
were  written  in  the  will  before  the  word  "children,"  "sons," 
"  issue,"  etc.  This  rule  of  construction  is  based  upon  the  maxim 
of  the  civil  law,  "  Qui  exdamnato  coitu  nascuntur,  inter  liberoa 
noil  comjndentiu';''''  and  although  natural  children  who  have 
acquired  the  reputation  of  being  the  children  of  the  testator, 
or  of  the  person  mentioned  in  the  will,  prior  to  the  date  of  its 
execution,  may,  under  some  circumstances,  be  capable  of  taking 
under  the  description  of  children,  jel  they  are  not  permitted  to 
take  upon  mere  conjecture  of  intention.  There  must  be  either  an 
express  designation  of  cliiidren  as  illegitimate  children,  or  there 
must  be  such  necessary  implication  of  an  intention  that  they 


>  Miller's  Appeal,    .52  Pa.  St.  113; 
Flora  v.  Anderson,  67  Fed.  R.  182. 


2  Worts  v.  Cubitt,  10  Boa  v.  421. 


§  -1-] 


GIFTS    TO    ILLEGITIMATE    CHILDREN". 


(03 


shall  take  that  no  doubt  shall  remain  that  the  testator  intended 
them  to  take  as  children.^ 

§  571.  IVlieii  a  2:ift  to  ^^ children"  generally  will  include 
illegitimate  cliildren  where  there  are  no  others. —  The  cir- 
cumstances that  no  legitimate  children  are  in  esse  at  the  date  of 


1  Shearman  v.  Angel,  1  Bailey  Eq. 
351,  356;  In  re  Haseldine,  Grange 
V.  Sturdy,  54  L.  T.  (N.  S.)  322;  L.  R. 
31  Ch,  D.  511,  517;  In  re  Harrison 
(1894).  L.  R  1  Ch.  561,  63  L.  J.  Ch. 
385,  70  L.  J.  868.  869;  Wilkinson  v. 
Adam,  1  Yes,  &  B.  422.  462;  Smith  v. 
Jobson,  59  L.  T.  397.  399.  "  I  reject 
the  notion  of  there  being  a  rule,  that 
illegitimate  children  cannot,  under 
any  circumstances,  participate  with 
legitimate  children  in  the  benefit  of 
a  gift  or  bequest  to  children  gener- 
ally. I  agree  that  tliere  is  no  invaria- 
ble rule  of  that  sort,  but  that  in  each 
case  the  question  is  one  which  de- 
pends upon  the  language  of  the  will; 
and  that  if.  from  the  whole  context 
of  the  will,  it  appears  that  illegiti- 
mate children  are  to  be  included 
•with  legitimate  children  in  the  ben- 
efit intended,  illegitimate  children 
may  take.  Still,  prima  facie,  the 
word  "children"  means  legitimate 
children,  and  is  to  be  read  as  though 
*  legitimate '  were  annexed  to  it." 
Lord  Crans worth  in  Owen  v.  Bryant, 
2  De  Gex,  :\I.  &  G.  697,  on  page  701. 
As  to  the  presumption  that  legiti- 
mate children  only  are  included  un- 
der the  word  "children  "  when  it  is 
used  in  a  will,  see  Hicks  v.  Smith,  94 
Ga.  809;  Kent  v.  Barker,  2  Gray 
(Ma.ss.),  535, 536;  Adams  v.  Adams,  154 
JIass.  290,  292;  Gardner  v.  Ileyer,  2 
Paige  (N.  Y.),  11;  Collins  v.  Hoxie 
(1829),  9  Paige  (X.  Y.),  80.  88;  Cromer 
V.  Pincknr-y,  3  liarb.  Ch.  (N.  Y.)  406: 
Heater  v.  Vanaukcn,  14  N.  J.  Eq.  159, 
167;  Kirkpatrick  v.  Pogors,  0  Ircd. 
(N.  C.)  Eri.  130.  136;  Gil<s<iii  v.  Moul- 
ton,  2  Disney  (Oliio),  15H;  lionnett  v. 
C'line.  18  \a.  Ann.  590;  Thoinjiw^n  v. 
McDonal-l.  2  Dev.  Bat.  E<i.  (N.  C.)463, 
48 


479;  Shearman  v.  Angel,  1  Bailey, 
Eq.  351, 357;  Miller's  Appeal,  52  Pa,  St 
113;  Ferguson  v.  !Mason,  2  Sneed 
(Tenn.),  618,  627;  Flora  v.  Anderson, 
67  Fed.  R.  182;  Hart  v.  Durand,  3 
Anst.  684;  Kelly  v.  Hammond,  26 
Bear.  36;  3Iortimore  v.  West,  3  Eng. 
Con.  Ch.  442;  Dorin  v.  Dorin,  L.  R. 
7  H.  L.  568.  575:  Dilley  v.  3Iathey,  11 
Jur.  (N.  S.)  425;  Warner  v.  Warner,  15 
Jur.  (N.  S.)  141;  In  re  Ayles'  Trusts, 
L.  R.  1  Ch.  D.  282;  Ellis  v.  Houston, 
L.  R.  10  Ch.  D.  236;  Holt  v.  Sindrey, 
L.  R.  7  Eq.  170, 173;  Paul  v.  Children, 
L.  R.  12  Eq.  16;  In  re  Lowe,  61  L.  J. 
Ch.  415,  416;  In  re  Overhill's  Trust, 
1  Sm.  &  G.  362;  Cartwright  v.  Vaw- 
diy,  5  Yes.  530;  Harris  v.  Stewart,  1 
Yes.  &  B.  434;  In  re  Harrison,  Har- 
rison T.  Higson  (1894),  1  Ch.  561 ;  63 
L.  J.  Ch.  385,  70  L.  T.  868:  Penrose  v. 
Manning,  63  L.  T.  159;  Standen  v. 
Standen  (1795),  2  Yes.  Jr.  589,  594; 
Raggett  V.  Browne,  61  L.  T.  463,  465; 
Paul  V.  Children,  L.  R.  12  Eq.  16,  17. 
The  presumption  that  the  word  "chil- 
dren "  does  not  include  illegitimate 
children  does  not  apply  to  a  gift  over 
in  case  of  the  death  of  the  children 
without  issue.  So  lield  in  a  case 
where  the  testator  gave  property  to 
an  illegitimate  daughter  by  name, 
and  provided  for  a  gift  over  if  any 
of  "his  children"  die  without  issue. 
The  property  of  the  daughter,  on 
lier  death  without  issue,  went  over. 
Smith  V.  Jobson,  59  L.  T.  397,  399.  "  Is- 
sue," in  a  limitation  over  on  a  definito 
failure  of  issue,  moans  h'lfitiinate  is- 
sue, and  if  illcgitimato  children  only 
are  left,  the  gift  over,  on  a  failure  of 
issue,  is  ofioralive.  Gibson  v.  Moul- 
ton.  2  I)isiu*y  (Ohio),  15M;  Thompson 
v.  McDonald,  2  Dev.  &  B.  Kq.  (N.  C.) 


T54r  LAW    OK    WILLS.  [§    571. 

the  execution  of  the  will  or  at  the  death  of  the  testator,  or  at  any 
other  period,  and  even  the  utter  inipossihillty  that  there  shall 
over  be  any  le^'itiniate  children  because  of  the  death  of  the 
parent,  do  not  alone  let  in  those  who  are  illegitimate  to  take  as 
diildrcn.  Hence,  in  some  cases  Avhere  such  a  combination  of 
facts  existed,  the  gift  to  children  has  failed  because  of  the  non- 
existence of  any  persons  to  whom  the  word  "children"  would 
apply. 

The  law  requires  that  the  intention  to  benefit  illegitimate 
children  shall  be  lunnistaJiahJi/  manifcdt^d,  but  does  not  lay 
•  lowu  any  particular  form  of  language  by  which  it  must  be 
manifested.  In  England,  in  a  case  where  there  was  a  provis- 
ion for  the  ^^ elded  child,  male  or  fenuile,  of  AV.,"  Avho  had  no 
legitimate  children  at  the  date  of  the  will,  which  fact  was 
known  to  the  testator,  but  who  had  several  illegitimate  chil- 
dren then  and  also  at  the  time  of  distribution,  the  court  held, 
relying  largely  upon  the  particular  words  '•'' eldest  child, ''^  that 
the  eldest  of  the  illegitimate  children  was  not  entitled.^  And 
the  principle  of  this  decision  has  been  repeatedly  affirmed  in 
subsec|uent  English  cases  where  there  were  no  legitimate  chil- 
dren.2  Thus,  in  a  case  decided  by  Sir  John  Bruce,  V.  C,  where 
the  testator  made  a  provision  in  trust  for  the  maintenance  of 
his  son  and  for  the  maintenance  of  "  his  (the  son's)  wife,"  and 
the  education  of  "  his  children,^^  and  at  his  "  wife''s  death  "  the 
principal  to  be  equally  divided  among  the  children  of  the  son, 
then  living,  and  it  appeared  that  the  son  was  not  married  to  the 
woman  with  whom  he  lived  and  by  whom  he  had  four  illegiti- 
mate children,  they  were  not  permitted  to  take,  in  spite  of  the 
fact  that  it  was  proved  that  these  illegitimate  children  had  been 
called  and  treated  by  the  testator  as  his  own  grandchildren.^ 

]jut  it  should  be  noted  that  these  cases  are  not  illustrations 
of  the  rule  that  illegitimate  children  are  not  capable  of  taking, 

4r.:3.  470.    An  illegitimate  child  of  A.  v.  Maxwell,  57  N.  Y.   S.  53,  26  Misc. 

Avill  not  be  permitted  to  take  a  share  R.  276. 

given  to  "  the  lawful  issue  of"  A., upon  i  Godfrey  v.  Davis,  6  Ves.  43. 

A. 's  death,  though  the  testator  knew  2Doggett  v.   Moseby,  7  Jones'  L. 

A.   had  an  illegitimate  child,    and  (N.  C.)   587;  Kenebel  v.  Scrafton,  2 

thougli  the  statute  provides  that  an  East,  530;  Harris  v.  Lloyd,  T.  &  R. 

illegitimate  child  whose  parents  in-  810. 

terinarry  shall  have  all  the  rights  of  3  Warner  v.  Warner,  15  Jur.  (N.  S.) 

legitimate  offspring.    U.  S.  Trust  Co.  141. 


§  572. J  GIFTS    TO    ILLEGITIM.ATE    CHILDREN".  755 

for  the}"  were  all  decided,  not  under  the  general  rule,  but  upon 
the  ground  that,  in  each  particular  case,  the  testator  had  not 
expressed  himself  in  a  sufficiently  clear  manner  to  show  that  ho 
intended  the  illegitimate  children  to  take.  For  if,  from  the 
will  itself,  it  is  not  clearly  apparent  to  the  court  that  lie  in- 
tends illegitimate  children  to  take,  it  is  immaterial  that  lohen 
he  mal'es  his  will  he  knows  of  their  existence^  and  that  he  also 
knows  that  there  are  then  no  legitimate  children.  Later  English 
cases  have  departed  from  this  strict  rule  where  there  are  only 
illegitimate  children,  and  particularly  where  the  parent  is  de- 
ceased. "Where  the  testator  devises  property  to  the  children  of 
A.,  describing  them  as  the  children  of  the  late  A.,  or  A.,  the 
parent,  is  named  by  the  testator  as  deceased^  and  A.  died  leav- 
ing no  legitimate,  but  one  or  more  illegitimate  children,  of  all 
of  which  the  testator  has  knowledge,  a  very  strong  presump- 
tion must  arise  in  favor  of  the  illegitimate  children  from  these 
facts,  as  it  was  an  impossibility  at  the  date  of  the  will  that 
there  should  be  any  legitimate  children  born  to  A.  subsequently, 
which  the  testator  knew.  It  may  then  be  assumed  that  the 
testator  intended  the  illegitimate  children  then  living,  whether 
his  own  or  of  some  other  person,  to  take  under  a  general  be- 
quest to  children.^ 

^  7u'2.  Parol  evidence  to  show  that  the  testator  meant 
illegitimate  children. —  The  intention  on  the  part  of  the  tes- 
tator to  include  illegitimate  children  under  the  term  "  chil- 

'  Gardner  v.  Heyer,  2  Paige  (N.  Y.),  at  the  date  of  tlie  will,  of  wliose  ex- 
it; Fergason  v.  Mason,  2  Sneed  istence  the  testator  knew.  She  was 
(Tenn.),  61>S,  027;  Woodhoiiselee  v.  tlien  sixty-seven  years  of  age,  her 
Dalryniple,  2  Mer.  419;  Leigli  v.  lawful  husband  dead,  and  .she  had  no 
Hynjn.  29  Beav.  2;j;J;  Lepine  v.  Bean,  li-^^itiniate  children.  //(/(/,  that  this 
L.  It.  10  E<i.  100,  102;  Beachcroft  v.  son  would  take  hy  virtue  uf  a  devise 
Beachcroft,  1  Mad.  4:iO;  Overiiiirs  to  "  all  children  of  my  said  dauj,diter. 
Trusts,  1  SuL  &  Gif.  ;{02,  ;J07.  But  it  whetlier  by  iier  (insi  ul  jn(la(irr  liiin- 
miLst  always  be  proved  that  tiie  tes-  hdiiil  or  by  any  person  she  may 
tator  knew  tliat  tlie  jjerson  s|X)ken  of  marry."  In  re  Brown,  01  L.  T.  239, 
an  the  jmrent  was  deceased  at  the  242.  In  Dorin  v.  Dorin,  L.  K.  7  II.  L. 
date  of  tlie  will;  for  such  knowledge,  Cases,  508,  573,  where  a  man  liaving 
unless  it  appears  on  tlio  face  of  the  two  illegitimate  and  no  legitiina(«> 
will,  is  not  Ui  bo  presuiiK'd.  In  re  chililren  married  the  mother  of  tlio 
H«jrbort's  Trusts,  1  Jo.  &  Hem.  121.  former,  and  nuule  a  will  devising 
The  daughter  of  tlie  testat«jr  was,  projM'rty  to  Jtis  childnii,  th(<  devise 
with  hin  knowlt.'dgf,  living  with  a  failed  where  he,  at  his  death,  had  no 
man  whom  she  aft^rwanls  marri(Ml.  legitimate  children. 
Shu  liad  a  hou  by  him  who  was  living 


756  LAW   OF   WILLS.  [§  572. 

dren ""  must  nppoar  from  tlio  will  itself.  Tlio  prosuin))li(»n  is 
that  he  uses  the  word  "child,"  "son,"  "issue,"  etc.,  in  the  or- 
dinary sense,  to  mean  a  legitimate  child,  or  son,  or  legitimate 
issue.  The  question  to  what  extent  extrinsic  evidence  may  be 
received  to  show  that  illegitimate  children  were  intended  to 
be  includetl  is  involved  in  controversy.  It  is  however  settled 
that  the  declarations  of  the  testator,  no  matter  when  made,  to 
the  effect  that  he  intended  a  certain  illegitimate  child  to  take 
lis  a  legitimate  child,  are  never  relevant. 

But  parol  evidence  of  the  circumstances  of  the  testator's 
family,  where /</.5  illegitimate  children  claim,  or  of  the  circum- 
stances of  the  family  of  the  person  described  in  the  will  as  the 
parent,  is  admissible.^  Thus,  it  may  be  proved  by  parol  that 
tlie  person  who  is  mentioned  as  the  parent  had  never  been 
married,  and  that  he  or  she  had  illegitimate  children,  and  that 
they  were  living  at  the  date  of  the  execution  of  the  will.^  And 
it  may  also  be  shown  by  parol  evidence  that  certain  illegiti- 
mate children  had,  at  or  before  the  date  of  the  will,  acquired 
the  reputation  of  being  the  children  of  the  testator,  or  of  the 
person  whose  name  is  mentioned  in  the  "will  as  the  parent.' 
Farol  evidence  is  always  received  to  show  whether  the  testa- 
tor knew  of  the  existence  of  illegitimate  children,  and  whether 
he  knew  the  fact  that  the  father  of  persons  claiming  as  chil- 
dren was  dead.*  Such  knowledge  will  not  usually  be  presumed 
to  exist  in  the  absence  of  all  proof  of  its  existence.* 

1  Beachcroft  v.  Beachcroft,  1  Mad.  Cartwright  r.  Vawdry,  5  Ves.  5.30. 
430,  437;  Crone  v.  Odell,  1  Ba.  &  Be.  The  presumption  is  that  a  person 
4Sl;Goodinge  V.  Goodinge,  1  Ves.231.  claiming  as  a  child  is  a  legitimate 

2  Gardner  V.  Heyer,  2  Paige  (N.  Y.),  child,  and  the  burden  of  proving 
11;  Laker  v.  Hordern,  L.  R.  1  Ch.  D.  tiiat  he  is  not  is  upon  the  party  as- 
644,  34  L.  T.  (N.  S.)  88.  serting  his  illegitimacy.     Metheny  v. 

3  Heater  v.  Van  Auken,  14  N.  J.  Eq.  Bohn,  160  111.  203,  43  N.  E.  R.  380;  In 
t.59, 167;  Collins  v.  Hoxie,  9  Paige  Ch.  re  Mathews,  37  X.  Y.  308. 1  App.  Div. 
«»,  88;  Gardner  v.  Heyer,  2  Paige  Ch.  231.  The  declarations  of  the  parents 
31;  Cromer  v.  Pinckney,  3  Barb.  Ch.  of  the  person  alleged  to  have  been 
<N.  Y.)  466;  Powers  v.  McEachern,  7  illegitimate,  where  the  parents  are 
S.  C.  290;  Shearman  v.  Angel,  1  dead,  are  admissible  to  show  the  in- 
JBailey  Eq.  351,  352;  Ferguson  v.  validity  of  the  marriage,  where  the 
Mason,  2  Sueed(Tenn.),  618, 628;  Hill  illegitimacy  of  the  child  is  in  issue. 
V.  Crook,  6  H.  L.  Cas.  265,  7  ISIoak,  Shorten  v.  Rudd,  42  Pac.  R.  337,  56 
£ng.   R    1;    Lord  Woodhouselee   v.  Kan.  43. 

Dalrymple.  2  Mer.  419,  423;  Swaine        <  Herbert's  Trusts.  29  L.  J.  Ch.  870, 

T.  Kennedy,  1  V.  &  B.  469.  470;  Wil-    871. 

kinsou  V.  Adam,  1  Ves.  &  B.  422,  462;        5  Mr.  Williams,  in  his  work  on  Ex- 


§  573.] 


GIFTS    TO    ILLEGITIMATE    CniLDKEX. 


T-5t 


§  573.  The  identification  of  the  chihlreu  by  name.—  If  an 

illegitimate  child  is  properly  identified  by  name  or  other  cir- 
cumstances appearing  in  the  will,  no  objection  can  be  raised  to 
his  taking  the  bequest  as  an  individual.  Accordingly,  where 
the  testator  has  devised  property  to  one  or  more  of  his  illegiti- 
mate children  by  name,  as  "  to  my  son  John  "  and  "  my  daugh- 
ter Mary,"  they  would  not  only  take  the  particular  bequest,  but 
the  will  shows  the  intention  of  the  testator  that  they  shall  also 
take,  under  the  term  "  children,"  a  share  of  the  residue.'  Ac- 
cordingly, where  the  testator  first  includes  illegitimate  children 
by  name  among  his  children,  and  then  in  the  will  gives  prop- 
erty to  his  "  said  children,"  the  illegitimate  children  will  be 
entitled  to  take  as  of  the  class  by  the  effect  of  the  Avord  "  said."  ^ 
AVhere  the  testator,  enumerating  his  nine  children,  three  of 
them  sons  and  six  daughters,  mentioning  them  as  the  children 
of  his  "  present  wife,"  and  reciting  that  he  had  provided  for 
his  four  married  children,  made  a  provision  for  his  two  unmar- 
ried daughters  by  name,  with  a  remainder  to  all  of  "  his  said 
children  hy  his  said  present  wife "  living  at  his  decease,  the 
court,  relying  upon  the  implication  created  by  the  word  ''^said,^* 


ecutors,  page  1184,  thus  summarizes 
the  Enghsh  rules  of  law  on  this  sub- 
ject: "Natural  children,  having  ac- 
quired the  reputation  of  being  the 
children  of  a  particular  person  prior 
to  the  making  of  the  will,  are  capa- 
ble of  taking  under  the  descrijition 
of  'children.'  And  they  may  take 
in  classes  of  cljildren  'legitimate  or 
illegitimate.'  But  tlie  will  must 
show  the  testator's  intention  to  in- 
clude them  under  this  description, 
either  by  express  designation  or  by 
necessary  implication.  For  other- 
wise the  term  '  child,' '  son,'  or  '  issue ' 
mast  be  understood  to  mean  legiti- 
mate child,  son  or  issue.  No  extrin- 
sic evidence  can  be  received  except 
Vi  prove  tlie  fact  of  illegitimate  chil- 
<lren  having  at  tim  date  of  the  will 
iic<|iiir<;d  the  rcjnitation  of  hcing  the 
chihlrt'ii  of  the  (t'stat<<r  or  the  |M'rKon 
named  in  the  will,  and  that  tlie  tes- 
tator kiMu    that  fact  and  the  state 


of  the  family.  Again,  it  is  a  rule 
(though  not  an  invariable  one)  that 
wherever  the  general  description  of 
children  in  a  will  will  include  legiti- 
mate children,  it  cannot  be  extended 
to  illegitimate  children.  In  other 
words,  the  rule  of  law  is  that,  where 
there  are  legitimate  cliiltlren  to  an- 
swer the  description  of  cliildren,  le- 
gitimate children  only  will  tiika" 

1  Smitli  V,  Jobson,  oS)  L.  T.  b*97,  liOd; 
Cart  Wright  v.  Vawdry,  5  Ves.  530, 
534;  Kaggett  v.  Browne,  01  L.  T.  463, 
405;  In  re  Brown,  02  L.  T.  891*;  Riv- 
er's Case,  1  Atk.  410. 

2  Evans  V.  Davies.  7  Hare,  498;  Hart- 
ley V.  Tribber,  10  Beav.  510.  H>.>  aa 
illegitimate  daughtiT  was  aihnittud 
to  the  benefit  of  a  provision  "for  alt 
vnj  (hunjittcrs,"  coming  after  a  de- 
vise "  to  mif  nittiintl  daughter  A.  and 
to  my  olliir  ddiK/lilrrs.''  Worts  v, 
(-'ill. ill,  I'J  Hcav.  V:i. 


758  LAW   OF   WILLS.  [§  573. 

and  the  enumeration  and  mention  of  the  children,  porniitted 
the  illegitimate  children  of  the  testator  by  his  then  wife  to 
take  under  the  devise  to  his  said  children.^  A  gift  to  four  chil- 
dren of  A.  l)y  an  enumeration  of  names,  being  preceded  by  the 
word  "namely,"  is  a  valid  gift  to  individuals,  not  to  a  class, 
and  all  those  named  may  take,  though  three  out  of  the  four 
are  the  illegitimate  chihlren  of  A.- 

Jt  has  also  been  held  that  the  circumstance  that  the  testator 
ffives  a  letiaev  to  some  of  his  illefiitimate  sons  lni  n<nn<'  mav 
raise  a  presumption  that  he  docs  not  intend  that  other  illegiti- 
mate children  of  his  not  named  shall  take  under  a  gift  to  his 
children  generally.'  And  an  express  exce])tion  by  name  of  one 
illegitimate  child  of  A.  from  the  benefit  of  a  provision  for  A.'s 
children  as  a  class  creates  no  presumption  whatever  that  the 
testator  intended,  by  this  exception,  to  inchule  another  ille- 
gitimate child  who  is  not  mentioned.*  Upon  the  question  of 
the  construction  of  a  devise  to  children  of  the  late  A.^  who  is 
dead  at  the  date  of  the  will,  having  left  all  illegitimate  chil- 
dren, or  some  legitimate  and  some  illegitimate,  the  English 
cases  are  not  harmonious.  In  a  case^  where  the  bequest  was 
to  the  "sons  and  daughters  of  the  late  J.  B.,"  who  had  only 
one  legitimate  child  (a  daughter) ;''  and  where  the  gift  was  to 
the  child  or  children  of  the  testator's  late  son,  who  had  one 
legitimate  and  several  illegitimate  children,  the  court  excluded 
all  the  illegitimate  children  and  permitted  the  one  legitimate 
child  to  take  all.^  But  these  early  cases  have  been  repudiated 
and  overruled  by  subsequent  English  decisions,  the  effect  of 
which  has  been  to  permit  illegitimate  children  to  take,  as  mem- 
bers of  the  class,  where  the  devise  w^as  to  the  children  of  a  per- 
son who  is  described  by  the  testator  as  deceased  at  the  date  of 
the  will.8 

1  Owen  V.  Bryant,  2  De  Gex,  M.  &  posed  of  the  cliildren  of  the  same 

G.  697,  701,  704,  21  L.  J.  Ch.  860.  person. 

-'  Meredith  v.  Farr,  2  Y.  &  C.  C.  C.        » Kelly  v.  Hammond,  26  Beav.  36. 
525;  Raggett  v.  Browne,  61  L.  T.  463,        *  In  re  Wells,  L.  R.  6  Eq.  599, 601. 
4f)5:  fiardner  v.  Heyer,  2  Paige  (N.  y.),        *  Hart  v.  Durand,  3  Anst.  684. 
11.   This  case  also  holds  tliattlie  nam-        *'Swaine  v.  Kennerley,  1  Yes.  &  B. 

ing  of  some  illegitimate  cliildren  as  469. 
beneficiaries  in   one  portion  of  the        "  ^4?ifc,  ^  572. 

•will  is  not  a  sufficient  indication  of        ^G\\\  v.  Shelley,  "Wigram  on  "Wills, 

an  intention  to  have  them  take  as  pi.  55:  Leigh  v.  Byron,  1  Sm.  &  Gif. 

members  of  a  class  wliich  is  com-  486,  17  Jur.  822;  Edmunds  v.  Fessey, 


§  571.]  GIFTS    TO    ILLEGITIMATE    CHILDREN.  ^~)0 

§  574.  The  reco2:iiitioii  of  ille£:itiinate  ehildron  l).v  the 
testator. —  The  fact  that  the  testator  in  his  life  recognizes  and 
treats  his  own  illegitimate  children  as  legiiunate  children;  or 
that,  in  his  will,  he  describes  them  by  terms  implying  their 
legitimacy^  is  not  conclusive  evidence  of  an  intention  on  his 
part  that  they  shall  take  under  a  bequest  to  his  children  gen- 
erally.^ This  rule  applies  also  to  a  reference  by  the  testator  to 
persons  who  are  the  illegitimate  children  of  others.  Hence  the 
fact  that  the  testator  describes  the  illegitimate  children  of  his 
brother  as  '■^Jiis  nrjJiews,''^  -  or  describes  the  illegitiniate  children 
of  his  mother  as  "  his  sisters,^^  ^  is  not  sufficient  alone  to  include 
them  under  a  gift  to  children  which  is  thus  given  or  which  is 
contained  in  another  portion  of  the  will.  It  has  also  been  held 
that  the  recognition  by  the  testator,  in  a  codicil,  of  his  ille- 
gitimate child  born  after  the  execution  of  the  will,  does  not 
entitle  such  child  to  claim  under  a  bequest  to  children  in  the 
will.-* 

In  relation  to  the  illegitimate  children  of  another  person,  it 
becomes  important  to  consider  whether  the  testator  knew  of 
the  illegitimacy  of  the  children;  for  upon  this  fact  frequently 
depends  the  decision  of  the  question  whether  all  children, 
legitimate  and  illegitimate,  are  to  take,  or  whether  only  those 
■who  are  legitimate  shall  take  under  a  bequest  to  the  children 
of  the  third  person.  It  does  not  follow  that  a  reference  by  the 
testator  to  a  person  as  the  icife  of  A.  implies  that  he  believes 
that  the  union  between  her  and  A.  is  a  legal  one,  and  that  their 
cliildren  are  legitimate.^  If,  in  fact,  the  testator  knows  that 
the  union  is  illegal,  and  employs  the  term  "  wife  "  as  matter  of 
courtesy,  his  knowledge  of  the  illegality  of  the  relations  e.xist- 

29  Beav.  2:53.     In  the  last  case  there  i  Ra^pfett  v.  Browne.  01  L.  T.  4(W, 

was  a  le^^cy  to  fttf/i  o/ f/(e  sons  (uid  405;  Harris  v.   Lloyd,  T.   &   R.  JHO; 

daiujliters  of  the  hifc  covisin  of  the  Dorin  v.  Dctrin,  L.  R.  7  H.  L.  ."iOS,  r)73, 

testator,  who  left  two  lej^itiniate  and  r)75;  In  re  llazcltline,  L.  R  '.il  Cli.  D. 

two  illegitimate  sons  and  one  ille-  511,  r»l7,  'U  L.  T.  liiJ.  34  W.  R.  327. 

Kitinjate  daughter.    The  illef^itiinate  '•'liranston  v.  Weij^litnian,  L.  li.  35 

ilauK'hter  was  hehl  to  be  entitled,  as  Ch.  D.  051.  50  L.  J.  Ch.  780, 57  L.  T.  42, 

the  t*'^tator  hadH|K>kenof  thef/f/i'f//*-  35  W.   R.  7'.(7.     See  also  cusch  jxist, 

//'r/»  of  his  late  cousin  in  the  pliinil;  ^VJH. 

\nit  the  illejfitiinate   sons  were  ex-  •'SlR'aniian  v.  AnKt'II.  1  Mailey  Kci- 

<:iuded.  as  tlie  t<*rnis  of  the  provision  (N.  C)  351.  350;  /lost.  ^  5JM(. 

for  the  sons  c-ouhi  Ikj  satisfied  willi-  ••Arnold  v.  I'n-ston,  IS  Ves.  288. 

out  including  Iheuu  ^  Post,  ^  OUi. 


760  LAW    KF    AVII.LS.  [§   574, 

ing  between  the  parties  is  very  material.  If  he  IcUeves  that  she 
is  in  hwv,  as  well  as  in  fact,  the  wife  of  the  person  mentioned, 
then  it  is  but  reasonable  to  assume  that  by  a  devise  to  her  chil- 
dren, or  the  cliihhvn  of  a  person  mentioned  as  /nr  /ni.shaiK?,  he 
means  onhj  JKjit'nnate  cJi'ddrcni  and  it  lias  been  therefore  held 
that  the  mere  description  of  the  daughter  of  the  testator  as  the 
"■2c//l'  of  J.  II."  will  not  be  enough  to  comprise  her  illegitimate 
children  by  J.  II.  under  a  devise  generally  to  her  cliildren, 
where  she  Avas  not,  in  fact,  the  wife  of  J.  II.,  wliich  fact  the 
testator  knew.^  On  the  other  hand,  if  he  knew  that  she  was 
not  a  legal  wife  of  A.,  it  is  very  clear  that  he  used  the  expres- 
sion, "  wife  of  A.,"  simply  as  a  term  of  courtesy,  and  that,  know- 
ing that  her  children  by  A.  were  all  illeyitunate,  he  intended 
to  give  them  property  SiS  persona  designata. 

Evidence  of  the  knowledge  by  the  testator  of  the  circum- 
stances of  the  case  is  always  admissible  to  explain  the  mean- 
ing he  attaches  to  any  word.  This  rule  applies  where  he  uses 
the  word  "  husband  "  or  "  wife."  The  question  is.  Did  ho 
mean  a  lawful  wife,  or  a  wife  by  reputation?  And  if  it  is 
shown  that  he  meant  the  latter,  nothing  then  exists  to  prevent 
Jeer  illegitimate  children  from  taking,  as  this  reference  to  her 
distinctly  points  them  out.  It  is  absurd  to  suppose  that  the 
testator  meant  that  the  parties  might  at  some  future  time 
legally  marry,  and  that  she  who  is  now  merely  a  wife  Ijy 
reputation  might  become  A.'s  wife  in  law,  and,  as  such,  have 
legitimate  children  by  him.^ 

These  considerations,  pointed  out  as  influencing  the  construc- 
tion of  a  gift  to  the  children  of  another,  are  of  much  greater 
pertinency,  where  the  gift  is  to  the  children  of  a  testator  who 
has  loth  legitimate  and  illegitimate  children.  In  the  absence 
of  statute  no  rule  of  law  prevents  the  testator  from  disposing 

iln  re  Ayles'  Trusts,  L.  R.  1  Ch.  as   his    "daughter,"  Avho   was    not 

D.  282.  legitimate.    Tliis  case  seems  to  hold 

-  In  re  Horner,  L.  R.  37  Cli.  Div.  695,  that  wliere  the  testator  knows  of  the 

70.3;  In  re  Harrison,  63  L.  J.  Ch.  385,  illegitimacy  of  the  relations  of  the 

70  L.  T.  868,  870.    Under  a  gift  to  parents,  he  will  be  presumed  to  have 

"the  issue  of  A.,"  an  illegitimate  referred     to    illegitimate     children. 

child,  A."s  daughter  by  M.,  wlio  was  Hill  v.  Crook,  42  L.  J.  Ch.  702,  L.  R. 

the  liusband  of  her  deceased  sister,  6  H.  L.  Cas.  205;  In  re  Walker,  06- 

was  admitted  on  the  grounds,  inter  L.  J.  Ch.  622  (1897;,  2  Ch.  238,  77  L. 

alia,  that  the  testator  had  described  T.  94 
JL  as  the  "  husband  "  of  A.,  and  G. 


§  574.]  GIFTS    TO   ILLEGTTDIATE    CHILDEEJT.  T'31 

of  his  property  in  favor  of  his  illegitimate  children,  to  the 
total  or  partial  exclusion  of  those  who  are  legitimate.  It  is 
altogether  a  question  of  intention,  and,  despite  the  presumption 
that  the  "word  "children,"  simjyliciter^  means  those  who  are 
legitimate,  if  it  appears  that  he  intends  to  benefit  only  his 
illegitimate  children,  the  court  will  respect  his  intention.  Thus, 
where  a  man,  having  abandoned  his  wife  and  children  abroad, 
had,  during  the  life-time  of  his  wife,  married  a  woman  in 
America,  by  whom  he  had  four  children,  and  had  made  a  will 
in  which  he  designated  her  as  his  wife,  appointed  her  a 
trustee  of  his  property,  and  devised  it  all  to  his  childi'en,  it 
was  conclusively  presumed  that  he  intended  the  illegitimate 
children,  only  to  take  to  the  exclusion  of  his  legitimate  off- 
spring. This  would  be  a  just  and  fair  construction,  where  the 
legitimate  children  were  able  to  care  for  themselves,  while 
the  illegitimate  children  were  all  minors,  and  particularly 
where  the  second  wife  was  not  at  fault,  and  had  no  knowl- 
edge of  the  existence  of  a  prior  marriage.^  But  it  has  also 
been  held  that  the  circumstance  that  the  testator  describes  A. 
as  the  eldest  daughter  of  S.,  in  a  gift  to  her,  and  also  speaks  of 
S.  having  daughters,  when  he  knew  she  had  but  one  legitimate 
daughter,  may  indicate  tliat  A.,  who  was  an  illegitimate  child 
of  S.,  should  be  included  in  a  gift  to  the  children  of  S.-  But 
generally  the  mere  fact  that  the  testator,  in  one  clause  of  hi& 
will,  gives  a  legacy  to  his  sons  John  and  James  by  name,  who 
are  illegitimate,  will  not  of  itself  enable  them  to  take  under  a 
devise  to  children  generally,  where  there  arc  legitimate  chil- 
dren who  can  take.'  On  this  point  of  recognition  by  a  parent 
the  cases  are  not  harmonious.'*  In  a  late  case  it  has  been  held 
that  an  illegitimate  child  described  by  the  testator  as  "  my 
son,"*  or  as  "my  daughter,"  and  wiio  is  also  described  as  the 
wife  of  a  person  whom  the  testator  calls  his  son-in-law,'^  would 
be  entitled  to  take  under  a  residuary  clause  directing  a  divis- 
ion of  the  estate  among  the  testator's  children.^ 

1  Elliott  V.  Elliott,  117  In.I.  380,885,  *Ante,  %  573, 

20  N.  E.  R  204;  tielstoii  v.  Shields,  »  Dickisou  v.  Dickison,  30  III.  Ai)p, 

78  N.  Y.  275.  SO.i. 

^Smitli  V.  Milli.lKf,  10  I..  T.  59.  «  Wiilsli  v.  Urown.  02  I^  T.  S'.KK 

^llf'Jit'T  V.  \'aii  .Xukcii,  11  N.  J.  \\i\,  ''"'riit!  woitls  used  mi*  tliciiisi'lvos 

107;  lijiKley  ^"^ -'^' ""'■"■<  I.  1  Uii.ss.&My.  KiKiiiliraiit  — -all  t  lie  <liil.livM  ..fli.  r 

681;  Fra»er  V.  I'igott,  M'"i MM'  .">"» I.  b(jily.'     At   lliu    tiniu    tlicsu    wmils 


7('»2  LAW  or  WILLS.  [§  575. 

§  r)7.").  M'\\n\  illoiiritimate  cliihlreii  may  tako  with  Ici^iti- 
inate  children  as  a  class.— Jii  the  cases  whicli  have  been  con- 
sulored  where  iUef^itiinate  cliiUlren  are  incliuletl  under  a  devise 
to  children,  by  reason  of  naming  them,  it  will  be  found  on 
consideration  that  ///<//  fukc  a.-t  indiridudlx}  ]Uit  there  can  be 
no  legal  oltjection  to  illegitimate  children  taking  as  a  class  to 
the  same  extent  as  those  Avho  are  legitimate.  Thus,  for  ex- 
ample, where  there  was  a  devise  to  '■'■  <(U  the  natural-horn  chil- 
dren of  A.,^^  all  the  illegitimate  children  of  A.  existing  at  the 
date  of  the  will  w^ere  permitted  to  take.^  Again,  the  intention 
of  the  testator  to  benefit  illegitimate  children  maybe  expressly 
shown ;  where,  for  example,  he  devises  his  property  to  be  equally 
divided  amongst  "the  children,  illegitimate  or  legitimate,  of 
my  brother,"  he  then  knowing  that  his  brother  had  several 
illegitimate  children.'  In  another  case,  Avhere  the  gift  was  by 
the  testator  to  his  children  by  a  woman  whom  he  described  as 
Ms  wife^  he  further  providing  that  they  should  take  in  any 
•event  "  as  'if  the  marriage  had  Ijeen  valid  according  to  A///',"  and 
it  happened  that  the  marriage  was  not  valid,  the  children  born 
of  the  illegal  union  take  as  though  they  w^ere  legitimate.'* 

Other  terms  also  used  by  the  testator  may  indicate  that  he 
means  illegitimate  children  to  take  under  a  provision  for  chil- 
dren. AVhere  there  is  a  provision  in  a  will  or  a  marriage  set- 
tlement for  all  children  that  have  been  born  or  may  be  born, 

vere  written  to  express  the  inten-  evidently    meaning    this    man    to 

tion  of  the  testatrix,  there  had  been  whom  she  no  doubt  considered  her 

lx)rn  of  the  body  of  her  daugliter  daugliter  lawfully  united.     Consid- 

two  children  by  a  former  marriage,  ered  in  the  liglit  of  the  surrounding 

who  are  the  defendants,   and  four  circumstances  when  it  was  made,  we 

children  who  are  plaintiffs,  and  who  must  conclude  that  there  should  not 

were  the  result  of  that  cohabitation  be  applied  to  the  interpretation  the 

between  her  and  S.  T.  Bostick,  the  usual  rigid  rule  "  of  exclusion.    SuUi- 

illegality  of  which  is  set  out  in  the  van  v.  Parker,  113  N.  C.  301. 

agreed  facts.     The  testatrix,  at  the  ^  Ante,  % 'u'i. 

time  she  executed  the  will,  was  liv-  ^Metliam  v.  Duke  of  Devon,  1  P. 

ing  in  tlie  house  with  her  daughter  W.  529,  5:30;  Pratt  v.  Flamer.  5  Harr. 

^nd  this  man  towards  wliom  that  &  J.  (Md.)  10;  Dane  v.  Walker,  109 

daughter  stood  in  the  relation  of  a  Mass.  179;  Stewart  v.  Stewart,  4  Stew, 

wife  in  fact,  if  not  in  law.     An  offi-  (N.  J.)  399. 

cer  of  the  law.  under  a  duly  issued  ^  Barnett  v.  Tugwell,  31  Beav.  232, 

license,  had  .solemnized  a  marriage  236. 

between  them.     She  speaks  in  the  *  Bayley  v.  Snelham,  5  Ves.  534,  1 

vrill  of  the  husband  of  her  daughter,  Sim.  &  Sta  78. 


§  570. J  GIFTS    TO    ILLEGITIMATE    CHILDREN.  703 

illeoritimate  children  who  are  living^  at  the  date  of  the  "will  are 
included,  but  not  those  subse([uently  born.^  So,  too,  in  a  more 
recent  case,  where  the  provision  Avas  for  A.  for  life,  and  at  her 
death  to  all  the  children  of  her  hody,  share  and  share  alike^  the 
court, construed  the  word  "children"  to  include  living  illegiti- 
mate children  as  icell  as  those  horn  after  the  execution  of  the 
will.- 

§  576.  Testamentary  provision  for  unborn  illegitimate 
children. —  In  the  i)receding  sections  we  have  construed  only 
the  questions  whether  illegitimate  children  could  take  as  mem- 
bers of  a  class  among  themselves,  and  whether  they  shall  take 
under  the  general  designation  of  children.  It  now  remains  to 
consider,  ^'/'6"^,  to  what  extent,  if  at  all,  the  testator  has  power 
to  provide  by  will  for  illegitimate  children  who  may  he  horn 
after  its  execution;  and  second^  assuming  that  he  j^ossesses  the 
power,  if  after-born  illegitimate  children  are  included  in  a  gift 
which  expressly  or  by  necessary  implication  provides  for  illc- 
<jitiniate  children  generally.  Early  authorities  maintain  the 
proposition  that  gifts  to  illegitimate  children  not  in  esse  are  not 
valid,'  and  cannot  be  sustainetl,  though  the  child  \^  en  ventre  sa 
mere.,  where  the  testamentary  provision  is  expressly  for  the 
natural-born  children  of  A.  horn  of  a  artain  woman.*  It 
seems  that  desi)ite  some  doubt  which  has  been  cast  upon  this 
rule  of  the  ancient  law  by  modern  decisions,'*  it  is  still  a  sub- 
sisting and  constituent  rule  of  the  English  law  at  the  present 
day ;  ^  for  some  very  recent  English  cases  expressl}'  hold  that 
no  gift  to  illegitimate  children  to  he  hegotten,  no  matter  in  what 
express  terms  it  may  be  couched,  is  valid,  though  at  the  same 
time  laying  down  the  rule  that  a  gift  to  illegitimate  children 
ojf  a  class  llcing  at  the  date  of  the  will,  including  those  en  ventre 
fsa  mere,  ^^lay  be  gootl.^ 

UIuglKis    V.    Knowlton,   .']7  Conn.  347,  113  N.  C.  301;  Holt  v.  Sindrey, 

429;  Galjb  v.  Prendergast,  1  K  «&  J.  L.  R.  7  Eq.  170.  174. 

4:39.     And  in  another  case  it  lias  been  ^  Hlodwell  v.  Edwards,  Cro.  El.  510. 

held   that  a  devise  "  ^>  viy  beloved  ^Metliani  v.  Duko  of  Devon,  1  P. 

wife,  and  a  remainder  t<j  my  chil-  W.  ."»2U,  WM). 

dren  wlKisliall  survive  me,"  included  ''Wilkinson  v.  Adam,  1  Vos.  «fc  13. 

all  tho  childrfn  f)f  the  testator  by  the  422.  44((. 

wife    mentioned,    though    his    mar-  •'Piiriiflt  v.  Tiigwt'll,  31   Hcav.  233, 

riage  with  her  was  void.     (Jclstoii  v.  23<i. 

Shields,  in  Hun,  1 13.  7H  N.  Y.  27-").  "  In  re  Hollon.  L.  1{.  31   Ch.  I).  r)12. 

''Sullivan    v.    Parker,   1«   S.   E.   11.  .Vl«,  5.',  U  J.  Ch.  39H,  54  U  T.  3U«,  34 


76-1:  LAW    OF    -WILLS.  [§  570. 

The  rule  of  law  adverted  to,  by  which  gifts  to  illegitimate 
chiUlreu  to  he  horn,  and  which  are  to  come  into  existence,  either 
after  the  execution  of  the  will,  or  after  the  death  of  the  testa- 
tor, is  invalidated,  was  not,  as  might  be  sujiposed,  based  upon 
any  uncertainty  of  tlie  beneficiaries;  for  every  class  whose 
members  are  to  be  ascertained  at  some  future  time  of  vesting 
or  of  distribution  wouUl  be  subject  to  the  same  objection.  The 
vaUdity  of  the  provision  was  disi)uted  and  overthrown  on 
other  grounds.  It  was  conceived  that  to  permit  a  testator  to 
j)rovide  i)i  advance  for  the  offsjfj'ingofan  illicit  union,  whether 
entered  into  by  himself  or  by  another  person,  would  be  offering 
a  premium  on  vice,  and  would  be  subversive  of  every  true  inter- 
est of  public  morality.  For  this  reason  the  general  })rinci])lo 
was  enforced  and  has  been  uniformly  sustained.  Kow  it  will 
be  ol)served  that  in  the  majority  of  cases,  while  the  operation 
of  this  rule  may,  upon  the  whole,  advance  the  interests  of  so- 
ciety, the  rule  will  work  an  irretrievable  hardship  upon  the 
innocent  offspring  of  an  illicit  connection.  It  is  a  rule  which 
usually  results  in  overthrowing  the  testator's  intention,  and 
giving  his  property  to  those  whom  he  did  not  desire  should 
enjoy  it.  The  courts,  therefore,  will  seize  upon  very  slight  cir- 
cumstances to  take  a  case  out  of  the  rule.  Thus  if  a  man,  after 
haelnfj  formed  an  illicit  relation  and  having  several  illegitimate 
children  horn  to  him,  makes  a  will  by  which  he  provides  for  all 
his  natural  children  born  or  to  be  born  before  his  death,  of  the 
woman  leith  ichom  he  is  living,  it  would  seem  but  reasonable  to 
permit  all  his  natural  children  to  participate  therein.^  So,  where 
the  testator  recognizes  the  illegitimacy  of  his  relations  with  a 
woman,  by  giving  property  to  his  four  "  natural "  children  by 
her  hg  name,  and  provides  further  for  any  which  she  may  have 
at  his  death,  his  future  illegitimate  children,  born  of  her,  will 
be  included.- 

"\V.  R  525;  Holt  v.  Sindrey,  L.R7Eq.  sister-in-law  of  the  testator,  M.L., with 

170.  174.  wiiom  the  testator  had  gone  tlirougli 

'  Occleston  v.  Fullalove,  L.  R  9  Ch.  the  ceremony  of  marriage,  and  after 

D.  147,  16:J,  170.  her  death  for  his  reputed  rliildren, 

-Hastie's  Trusts,  L.  R  35  Ch.  D.  C.  and  E.,  and  "  all  other  children  }ie 

728,  732,  5G  L.  J.  Ch.  792,  57  L.  T.  168,  might  have,  or  be  reputed  to  have,  by 

35  W.  R  692.    In  Occleston  v.  Fulla-  the  said  M.  L.,  then  born  or  thereafter 

love,  L.  R  9  Ch.  D.  147,  163,  170,  the  tobebom."  The  court  held,  after  very 

testamentary  provision  was  for  the  much  discussion,  that  an  after-born 


§  577.]  GIFTS    TO    ILLEGITIMATE    CHILDKEX.  705 

But  it  must  be  said  that  the  English  cases  are  bv  no  means 
harmonious  on  this  question.  A  gift  by  a  mother  to  her  own 
children,  '■'■  illegit'tmate  or  othtrwise,''-  has  been  held  not  to  in- 
clude her  illegitimate  children  born  after  the  execution  of  the 
will.^  And  again,  where  the  testator  was  living  with  a  woman 
whom  he  called  his  wife,  and  whom  everybody  supposed  was 
his  wife,  by  whom  he  had  four  children,  two  of  whom  were 
dead  and  one  living  at  the  date  of  the  will,  and  one  was  born 
subsequent  to  its  execution,  all  of  whom  were  illegitimate,  be- 
cause he  had  another  wife  living  b}^  whom  he  had  no  children, 
the  court  excluded  the  natural  child  born  after  the  execution 
of  the  will,  and  permitted  the  illegitimate  child,  living  at  its 
execution,  to  take  the  whole  gift,  though  in  terms  it  was  simply 
to  children  as  a  class.- 

§  577.  Provisions  for  illegitimate  cliildren  en  ventre  sa 
mere. —  A  distinction  is  made  by  the  cases  between  the  validity 
of  a  testamentary  gift  to  an  illegitimate  child  en  ventre  sa  mere, 
where  there  is  no  reference  to  its  jpaternity^  and  a  gift  to  an  ille- 
gitimate child  under  similar  circumstances,  where  the  testator 
refers  to  some  particular  person  as  its  father.  In  the  former 
case  the  gift  is  unquestionably  good.  The  rule  of  law  which, 
upon  grounds  of  morality  and  public  policy,  invalidates  testa- 
mentary provisions  for  illegitimate  children  to  Ije  horn  in  the 
future,  has  no  application  to  a  child  en  ventre,  for  the  child  is 
already  actually  begotten,  and  by  a  fiction  is  in  esse  for  most 
purposes.  Thus  Lord  Elden  held  that,  in  a  case  where  the  tes- 
tator, though  reciting  that  he  lelteved  that  a  woman  named,  to 
whom  he  was  not  married,  was  pregnant  by  him,  gave  a  legacy 
to  the  child  of  which  she  was  then  pregnant,  the  legacy  was 
valid,  and  that  the  language  employed  did  not  constitute  a  ref- 
erence to  tlie  patei-nity  of  the  child.'     A  legacy  to  a  natural 

illegitimate    child  was    entitled   to  1  Howard  v.  Mills,  L.  R.  2  Eq.  :]89, 

tak&   This  decision  was. subsefjuently  891. 

followed.     In  re  GfX)d\vin,  L.  li.  17  ^Lepine  v.  Bean,  L.  R.  10  Eq.  1(50, 

Efj.    :34."),  where  the  devise    was  in  102.     In  "Wilkinson  v.  Adam,  1  Ves. 

trust  for  A.,  and  after  her  death  for  &  B.  422.  400,  a  gift  to  "  the  children 

all  of  Vie  children  of  tin;  trntiitor  by  which  I  may  liave  by  A.,  living  at  a 

A,   and   there  was  an   illegitimate  ccj'/a/n"  date,  was  lield  gooil. 

child   lK)rn   s<!venil  ywirs  after  the  3(Jordoii  v.  Clordon,  1  Mer.  141,  151. 
date  of  the  will,  wiiich  was  acknowl- 
edged by  its  father. 


^00  LAW    OK    WILLS.  [§  577.  . 

c-liil(l  of  wliirli  a  woman  is  prci^niant  hv  a  partii-iilar  man  stands 
iijton  a  ilitlcrcnt  footing.  In  such  cases  the  [Kiternity  of  the 
child  is  a  con»liti<>n  precedent  to  the  vesting  and  ])ayment  of 
the  legacy.'  While  the  birth  of  a  cliild  whose  mother  is  the 
\vonian  mentioned,  within  such  a  period  subsequent  to  the  exe- 
cution of  the  will  as  to  establish  conclusively  that  she  was 
enre'nite  at  that  date,  is  a  matter  comparatively  easy  of  proof, 
being  now^  customarily  matter  of  record,  to  prove  the  paternity 
of  such  a  child  is  nuitter  of  great  dilticulty.  A  natural  child  is 
at  common  law 7>r/?/^/7y*rtl"/r'J^7/^^s  null ii(.s,  and  can  only  ac([uire 
a  name  by  reiHitation.-'  The  issue  of  paternity  is  one  which  the 
law  cannot  t/ien  incpiirc  into.  If  the  testator  describes  the 
natural  child  of  which  the  woman  is  enceinte  as  his  own,  the 
gift  is  void;  for,  as  the  only  motive  of  his  bounty  is  the  fact 
that  he  assumes  himself  to  be  its  father,  and  as  this  fact  cannot 
be  ascertained  or  in  any  manner  inquired  into,  the  gift  must 
fail  altogether.  If  the  paternity  of  the  child  is  an  implied  con- 
dition of  the  testator's  bounty,  without  which  the  legacy  would 
not  have  been  given,  the  gift  is  void.  But  the  cases  show  con- 
clusively that  the  intention  to  make  the  paternity  of  the  child 
an  essential  element  of  its  character  as  a  legatee  must  appear 
in  language  of  unmistakable  clearness.  Accordingly  Avliere  a 
testator,  after  reciting  that  he  had  two  natural  children  and 
that  the  mother  was  supposed  to  be  now  carrying  a  third,  added, 
"1  bequeath  the  whole  of  my  property  —  that  is  to  say,  if  an- 
other child  is  born  to  the  mother  of  the  other  two,  such  child 
to  have  one-third,"  the  third  child  of  which  the  woman  men- 
tioned Avas  pregnant  was  permitted  to  take  with  the  other 
natural  children,  upon  the  ground  that  the  language  contained 
in  the  will  neither  referred  to  such  child  as  his,  nor  asserted  that 
he  was  its  father,  nor  showed  that  he  gave  it  a  legacy  solely 

' "  A  man  cannot  provide  for  the  we  could  make  out  from  this  will 
illegitimate  children,  either  of  him-  that  the  testator  meant  that  all  chil- 
self  or  of  another,  by  anj'  reference  di-en  of  the  woman  iMirn  during  his 
that  involves  an  inquiry  as  to  their  coliabitation  with  her  sliould  be  con- 
paternity.  Tlie  law  allows  no  crite-  sidered  or  reputed  to  be  his.  tliey 
rionof  paternity  but  marriage.  .  .  .  miglit  take."'  In  re  Bolton.  Brown 
It  is  true  that  although  the  fact  of  v.  Bolton.  L.  R,  .31  Ch.  Div.  r,42.  .jo^. 
piternity  cannot  be  inquired  into,  - 1  Black.  Com.  4.j9;  6  Co.  08;  1 
the  reptitation  of  paternity  may.  Inst.  'db. 
The  law  does  not  forbid  that ;  and  if 


§  578.]  GIFTS    TO    ILLEGITIMATE    CIIILDKEN.  707 

as  /t/'s  e/iihl}  But  if  the  testator  gives  a  legac}' to  a  natural 
cliilcl  of  A.  of  Avbich  she  is  ^^ noia  enceinte  hj  me,'''  or  "as  she 
may  Jnq^j^en  io  he  enceinte  Juj  me,''  the  gift  will  be  void.- 

§  5TS.  Effect  of  judicial  decree  legitimatizing  illegitiniute 
cliildreu. —  In  Georgia  a  judicial  decree  by  which  a  child  is 
legitinuited  under  a  statutory  provision  giving  the  court  juris- 
diction to  grant  a  decree  on  proper  application,  while  it  may 
enable  a  child  to  take  b}^  descent  from  its  putative  father,  will 
not  enable  him  to  take  as  a  purchaser  under  a  will  by  which 
his  father  is  tenant  for  life,  with  a  remainder  to  his  children.' 
The  converse  of  this  rule  is  recognized  in  Pennsylvania,'*  where 
it  is  held  that  a  judicial  legitimation  of  an  illegitimate  child 
will  enal)le  her  to  take  under  a  limitation  to  lawful  issue  in  a 
will;  and  the  children  of  an  illegitimate  marriage,  entered  into 
before  she  was  thus  legitimatized,  are  also  lawful  issue.  In 
view  of  the  irreconcilable  character  of  these  decisions  no  rule 
can  be  laid  down.  The  statute  in  each  instance  must  be  con- 
sulted to  ascertain  how  far  a  judicial  legitimation  will  render 
illegitimate  children  competent  to  take  as  purchasers  under  a 
Avill.  Aside  from  express  statutory  rules,  we  have  every  right 
to  assume  that  the  testator,  in  the  absence  of  an  express  or 
implied  provision  for  illegitimate  children,  intended  tliose  only 
shall  take  who  are  in  fact  legitimate,  to  the  exclusion  of  those 
whom  the  law  makes  legitinuite.  More  particularly,  where  he 
])rovides  for  his  own  issue,  it  is  extremely  improbable  that  he 
intends  that  the  illegitimate  children  of  his  son  or  daughter 
should  take  as  issue,  though  made  legitimate  by  statute,  to  the 

1  Evans  v.  Massey,  8  Price,  22.  scription,  non  constat  that  the  gift 

*  E;irle  v.  Wilson,  17  Ves.  528.     In  would  ever  have  been  made." 
tills  case  Sir  W.  Grant  said:  "Su\>-        ^  Hicks  v.  Smith,  94  (Ja.  80i).  810. 
f)ose  the  words  'as  she  may  happen        •»  Miller's  Appeal,  52  Pa.  St.  11^,  115. 

to  1x5  t'Hf<?aj/e  by  me  '  could  be  taken  An  illegitimate  child  who  is  made 

t<j  nie^n  'as  she  is  now  encehitehy  legitimate  by  .statute  is  an  heir  to 

me,' in  which  there  is  considerable  his  father  within  the  m(>aning  of  the 

diflic-ulty;  yet  if  the  rule  of  law  does  phrase  "dying  without  an  heir."    Mc- 

not  a<;kno\vl<Mi;^('  a  natural  child  to  (Junnigle  v.  I\I<dvee.  77  Pa.  St.  81,  8."». 

have   a   father  iM'fore  its  birth,  (he  An    illegitimate   child   cannot   take 

changf  of  phrasi' would  not  have  the  under     a     i)rovision     for     cliildieii, 

elTcct  of   making  th*-  ix'nuest  g<K»d.  though  under  a  statute  such  an  iile- 

lle  means  to  give  to  an  unliorn  has-  ^itimate child  would  take  as  the  heir 

t.inl  by  a  dewription  which  tlie  law  of  its  mother  t(nmlly  with  the  law- 

Hiij'H  such  iHM"Kon  cannot  answer;  and  fid  «liildi<ii.     In   re  SchoU's  Instate, 

if  you  take  away  that  part  of  the  de  70  N.  W.  K.  tJKi. 


iGS 


LAW    OF    WILLS. 


[§  578. 


partial  oxclusii^n  of  his  o\vn  cliildi'cn  and  irraiidrliildron  wlio 
are  legitimate.  Such  illegitimate  issue  have  no  claim  upon 
him,  cither  in  law  or  morals,  and  the  fact  that  they  are  enabled 
to  take  by  descent  from  their  father  or  mother  by  statute 
raises  no  presumption  that  the  testator  meant  them  to  take  as 
purchasers  by  a  provision  for  his  own  issue.^ 


1  Under  the  statute  wliich  provides 
that  an  illegitimate  child,  whose  par- 
ents have  intermarried,  shall  be  legit- 
imate and  entitled  to  the  rights  of 
a  legitimate  child,  the  court  held 
that  an  illegitimate  child  of  the  son 
of  the  testator,  born  after  testator's 
death,  was  entitled  to  take  under 
a  provision  for  his  grandchildren. 
Smith  V.  Lansing,  53  N.  Y.  S.  633,  24 
Misc.  R.  566.  A  testator  who  re- 
sided in  the  state  of  Massachusetts 
devised  property  to  A.  and  his  pres- 
ent wife  for  the  benefit  of  hira  and 
his  wife  and  child.  A.  subsequently 
procured  a  divorce,  which  was  in- 


valid because  of  a  lack  of  jurisdic- 
tion by  the  court,  and  subsequently 
married  a  woman  by  whom  he  had 
already  had  an  illegitimate  child. 
The  ^Massachusetts  court  held  that 
tlie  validity  of  the  decree  of  divorce 
could  be  inquired  into,  and,  being  in- 
valid, the  subsequent  marriage  was 
also  void  and  did  not  legitimatize  the 
illegitimate  child,  as  it  would  have 
done  in  the  state  (California)  where 
it  was  contracted,  if  it  had  been 
valid.  This  child  therefore  took  noth- 
ing by  the  will.  Adams  v.  Adams, 
154  Mass.  290,  28  N.  K  R.  260. 


CHAPTEE  XXVII. 

WHEN  "CHILDREN"  IS  A  WORD  OF  LIMITATION  —  THE  RULE  IN 

WILD'S  CASE. 


§  579.  The  word  "children"  when 
used  as  a  word  of  limita- 
tion. 

580.  The  rule  in  Wild's  Case. 

581.  When  children  must   be  liv- 

ing. 

582.  Immediate  devise  to  the  par- 

ent and  children  when  the 
children  are  livinsr. 


§  583.  Whether  gift  to  "  A.  and  his 
children  '*  is  immediate  or  in 
remainder  to  the  children. 
58-4.  Whether  the  rule  in  Wild's 
Case  is  applicable  to  per- 
sonal property. 


§  579.  The  Avord  "  children  "  when  used  as  a  word  of  lim- 
itation.—  The  construction  of  the  word  ''children"  employed 
as  a  term  of  purchase  has  been  very  fully  considered  in  another 
portion  of  this  work,  w^here  the  principles  which  govern  it  have' 
been  stated  at  full  length.^  But  "  children  "  or  "  child  "  may 
be  employed  as  a  word  of  limitation  as  Avell  as  a  word  of  pur- 
chase. "When  it  is  found  alone  in  a  will  without  being  collocated 
with  "heirs  of  the  body"  or  "issue,"  and  also  without  any 
limitation  over  on  a  failure  of  issue,  it  is  usually  a  Avord  of  pur- 
chase. In  fact,  in  the  great  majority  of  cases  in  which  this 
word  or  its  equivalent,  "  sons  "  or  "  son,"  appears  in  wills,  it  is 
a  word  of  purchase  and  not  a  woi'd  of  limitation.  The  courts 
will  in  cases  of  doubt  favor  the  rule  by  which  it  is  held  to  be  a 
word  of  purchase,  giving  those  who  answer  to  the  description 
of  children  a  direct  interest  under  the  will,  and  not  one  which 
is  merely  derivative  from  a  parent. 

But  whether  the  word  shall  be  regarded  as  a  word  of  ])ui- 
chase  or  as  a  word  of  limitation  is  altogether  a  matter  of  as- 
certaining wiiich  the  testator  intench'd  it  to  Ix'.  AVith  this 
word,  as  witii  the  similar  woi-ds  "licirs,"  "issue,"  "next  of  kin," 
no  general  mile  can  Ix'  laid  down  wliicli  will  show  wiicn  tlicy 
are  words  of  limitation  and  when  words  of  purchase.  Hut 
there  is  one  well-ddincd  class  of  cases  in  which  the  word  "chil- 

49 


LAW    OF    WILLS. 


[§  580. 


di'oii "  is  always  roganled  as  a  word  of  limitation,  which  wo 
will  now  consiih'i". 

§  oM).  The  rule  in  Wild's  Case.— If  the  testator  shall  de- 
vise land  to  ^1.  (Dul  his  c/u'/dreu,  and  the  person  named  as  the 
parent  has  no  cJi'dd  at  the  date  of  the  tvill^  the  devise  will  con- 
fer npon  A.  an  estate  tail.  The  word  "children ''  will  here  be 
regarded  as  a  word  of  limitation,  not  of  i)urchase,  and  equiva- 
lent to  "  heirs  of  the  body  "  of  the  person  mentioned  as  the 
parent.  But  in  order  that  such  a  construction  may  be  had,  it 
must  clearly  appear  that  the  testator  did  iwt  intend  to  create  a 
life  estate  in  the  parent,  with  an  executory  gift  to  the  children 
as  purchasers  after  the  parent's  death ;  for  if  he  did,  the  word 
"children  "  is  a  word  of  purchase,  and  the  children  will  take 
as  remaindermen.  This  is  a  very  ancient  rule  of  the  English 
common  law,  commonly  called  the  rule  in  AYild's  Case.^ 

It  is  also  received  in  the  United  States  as  a  part  of  the  law 
of  real  property,  with  this  modilication:  that,  in  those  states 
where  estates  in  fee-tail  have  been  abolished  by  statute,-  a  de- 
vise of  an  estate  to  A.  and  his  children  would  give  a  fee-simple 
to  A.3 


1 6  Rep.  17. 

3Nimino  v.  Stewart,  21  Ala.  (1853), 
682,  691;  Wiley  v.  Smith.  3  Ga.  (1847), 
551;  Jossey  v.'white,  28  Ga.  270,271; 
Sandforil  v.  Sandford,  58  Ga.  (1877), 
260;  King  v.  Rea,  56  Ind.  1,  17;  Rigg 
V.  McCarty,  86  Ind.  352;  Moore  v, 
Gary,  149  Ind.  51,  58,  48  N.  E.  R  630; 
Lofton  V.  ^lurchison.  80  Ga.  391,  392, 
7  S.  E.  R.  322;  Lachland's  Heirs  v. 
Downing.  11  B.  Mon.  (50  Ky.)  32,  34; 
Moran  v.  Dillehay.  8  Bush  (Ky.),  434, 
440;  "Williams  v.  Duncan,  92  Ky. 
(1891),  125,  131,  17  S.  W.  R.  330;  Carr 
V.  Estill,  16  B.  Mon.  (55  Ky.)  309; 
Hood  V.  Dawson,  92  Ky.  285,  290,  33 
S.  W.  R  75;  Blankenbaker  v.  Wood- 
ruflf,  97  Ky.  277;  Baker  v.  Scott,  62 
HL  86;  Beacroft  v.  Strawn.  77  IlL 
(1875),  28,  33;  Schaefer  v.  Schaefer, 
141  111.  333.  31  N.  E.  R  136;  Allen  v. 
Hoyt,  5  Met.  (Mass.)  324.  328;  Night- 
ingale V.  Burrell,  15  Pick.  (Mass.)  104, 


114:  Wheatland  v.  Dodge,  10  Met.  (51 
Mass.)  502,  504;  Akers  v.  Akers,  23 
N.  J.  Eq.  26,  29;  Jones  v.  Jones,  13  N". 
J.  Eq.  236,  238;  Stokes  v.  Tilly,  9  N. 
J.  Eq.  (1852),  137:  In  re  Saunders,  4 
Paige  (N.  Y.,  1834),  293,  297;  Hannan 
V.  Osborn,  4  Paige  (N.  Y.,  1834),  336, 
341 ;  Rogers  v.  Rogers,  3  Wend.  (N.  Y.) 
503;  Chrystie  v.  Phyfe.  19  N.  Y.  344, 
353:  Silliman  v.  Whittaker,  119  N.C. 
89.  93.  25  S.  E.  R  742;  Moore  v.  Leach, 
5  Jones'  (N.  C.)  L.  88;  Jenkins  v.  Hall, 
4  Jones'  Eq.  (N.  C.)  334;  McKee's  Es- 
tate, 104  Pa.  St.  571;  Guthrie's  Ap- 
peal, 37  Pa.  St.  9.  21;  In  re  Cressler's 
Estate,  29  Atl.  R  90,  95,  161  Pa.  St. 
427,  434;  Cote  v.  Bonnhorst,  41  Pa. 
St.  243;  Johnson  v.  Jolmson,  McMul- 
lan  (S.  C.,  1842),  Eq.  345:  Reader  v. 
Spearman,  6  Rich.  Eq.  (S.  C.,  1853).  88, 
93;  Mosby  v.  Paul,  88  Va.  533  (1892); 
Moon  V.  Stone,  19  Gratt.  (Va.,  1869)% 
130;  Merryman  v.  Merryman,  5  Munf. 
(Va.)  550;  Smith  v.  Fox's  Adm'r,  83 


§  5S1.]  -WHEN    "children"    A    WORD    OF    LIMITATION.  TTl 

§581.  When  children  nuist  be  living. —  The  basis  of  the 
rule  is,  in  the  first  instance,  the  intention  of  the  testator  or 
grantor  to  henejit  the  children  of  A.  The  rule,  as  it  is  defined 
and  formukited  in  the  early  Englisli  cases,  demands  that  there 
shall  be  no  children  living  at  the  time  of  the  devise  in  order 
that  it  shall  apply,  and  the  word  be  taken  as  a  word  of  limita- 
tion. Thus,  where  the  testator  devised  the  fee-simple  of  his 
estate  to  his  son  and  to  his  children,^  or  to  his  grandson  and 
his  children  forever^'  and  the  son  and  the  grandson  respectively 
had  no  children  living  at  the  date  of  the  devise  or  at  the  death 
of  the  testator,  it  was  held  that  each  took  an  estate  tail.  It 
would  seem  also  that  the  fact  that  the  person  whose  children 
are  to  take  had  a  child  living  at  the  death  of  the  testator,  would 
not  prevent  the  application  of  the  rule  where  such  person  had 
none  living  at  the  date  of  the  will.'  The  modern  cases  have 
modified  the  rule  in  this  respect,  and  it  is  now  usually  applied 
only  where  there  are  no  children  living  at  the  death  of  the  testator, 
when  the  will  goes  into  effect. 

For  to  apply  it  only  to  a  case  where  the  parent  had  no  chil- 
dren living  at  the  date  of  the  execution  of  the  will,  and  thus 
to  give  him  an  estate  in  fee-tail,  which  by  the  statutes  in  the 
United  States  is  converted  into  a  fee-simple,  would  possibl}'^,  if 
there  were  children  subsequently  born  to  him  who  were  living 
at  the  death  of  the  testator,  have  the  effect  of  depriving  them 
of  all  benefit,  contrary  to  the  clear  intention  of  the  testator. 
For  if  the  word  "children"  is  to  be  construed  as  a  word  of 
limitation,  and  the  parent  is  to  take  the  fee,  he  will  be  able 
to  alienate  the  fee-simple  of  the  estate.  Now  it  is  apparent  in 
most  cases  of  this  kind  that  the  testator  intended  a  direct  bene- 
fit to  the  children,  and  hence,  if  a  child  is  living  at  his  death,  he 
ought  to  take  as  a  purchaser,  and  no  necessity  of  applying  the 

Va.  763,  1  S.  E.  R.  200;  Graham  v.  hara,  2  W.  BL  1093;  Cook  v.  Cook.  2 

Graham,  4  W.   Va.   320;    I'arkniau  Vern.  545;  Hughes  v.  Sayer,  1  P.  "W. 

V.  Bowdoin.  1  Sumn.  3r,9,  3«4,  371;  534 ;  Scale  v.  Barter,  2  Bos.  «&  Pul.  485, 

King   V.    Melliiig.    1  Vent.  214,  225;  493. 

"Wood  V.  Baron,  1  East,  259;  Davie  v.  •  Davie  v.   Stevens,  Dougl.  (Eug.) 

Stevens,  1  Dong.  :521;  Uat.-s  v.  .Jai^k-  321. 

son,  2  Strange,  1171.  1172;  0  Cruise  -Broadlmrst  v.  Morri.s,  2  Barn.  & 

Dig.,  tit  :W,  cii.  12;   Buflar  v.  Brad-  Ad.  1. 

ford,  2  Atk.  220;   White   v.  White,  'Seale  v.  Barter,  2  Bos.  &  P.  485, 

Willes,  348,  353;  Wliarton  v.  Grea-  487. 


1~'2  LAW    OK    -WILLS.  [§  582. 

rule  AvouUl  arise.  So.  also,  if  a  child  was  born  to  tlio  parent 
subseijuently  to  the  execution  of  the  will,  anil  this  child  should 
survive  the  testator,  and  was  competent  to  take  as  a  purchaser, 
Avliik'  the  parent  had  died  durini,^  the  life-time  of  the  testator, 
the  devise  would  lapse,  in  the  absence  of  statute,  as  a  consp- 
(|ueni-e  of  holding  the  word  "children"  to  be  a  word  of  limita- 
tit»u.  Ap[)lying  the  rule  in  AVild's  Case,  which  gives  the  parent 
an  estate  in  fee-simple  or  fee-tail,  by  construing  "children''  as 
equivalent  to  "  heirs  of  the  body,"  the  estate  would  then,  in  the 
absence  of  statute,  lapse  by  the  death  of  the  ])arent  during  the 
life-time  of  the  testator,  and  his  intention  that  the  children 
should  take  the  l)eneflt  would  l>e  overthrown.' 

^  5s*^.  Innnediate  devise  to  tlie  parent  and  children  when 
chihlren  are  living. —  While  one  clause  of  the  rule  in  Wild's 
Case  sustains  the  principle  that,  where  lands  are  devised  to  a 
person  and  his  children  simply,  and  he  has  no  children  at  the 
date  of  the  devise,  or  at  the  date  of  the  will,  who  can  take  as 
purchasers,  he  shall  take  an  estate  in  fee-tail,  another  portion 
of  it  lays  down  the  rule  that  in  the  case  of  a  devise  in  those 
terms,  if  there  he  children  at  the  death  of  the  tentator,  the  par- 
ent and  the  children  will  take  together  as  purchasers  2^^  joint 
tenants,  according  to  the  nature  of  the  estate.'-'  If  the  devise 
to  A.  and  his  children  is  in  indeterminate  language,  no  words 
of  inheritance  being  used,  they  will,  with  the  parent,  take  at 
common  law  a  joint  estate  for  their  lives  ;^  though,  under  the 
modern  statutes,  the  parent  and  the  children  would  take,  usu- 
ally as  tenants  in  common,  all  the  interest  of  the  testator  in 
the  land  disposed  of,  in  the  absence  of  a  contrary  expression 
of  intention  in  the  will.* 

1  Buffar  V.  Bradford,  2  Atk.  220.  such  words  shall  be  taken  as  words 
-  Gates  V.  Jackson,  2  Stra.  1172.  of  limitation."  6  Rep.  17.  It  is  also 
The  language  of  Lord  Coke  in  Wild's  stated  "  that  if  a  man  devise  land  to 
Case  is  as  follows,  referring  first  to  A.  and  his  children  or  issue,  and  he 
the  construction  by  whicli  an  estate  then  have  issvie  of  his  body,  there 
tail  is  created:  "The  intent  of  the  his  express  intent  may  take  effect 
testator  is  manifest  and  certain  that  according  to  the  rule  of  the  common 
his  children  (or  issue)  should  take,  law,  and  no  manifest  and  certain 
and  as  immediate  devisees  they  can-  intent  appears  in  the  will  to  the  con- 
not  take,  because  tiiey  are  not  in  trary;  and  therefore,  in  such  case, 
rerum  natura;  and  by  way  of  re-  they  shall  have  but  a  joint  estate  for 
mamder  they  cannot  take,  for  that  life." 
was  not  his  (the  devisor's)  intent,  for  3  gge  cases  in  next  note, 
the    gift    is    immediate;     therefore  < Dunn  v.  Bank,  2  Ala.  (1841),  152, 


§  ^S'2.]  AVIIKX    "•CIIILDREX"    A   WORD    OF    LIMITATION.  773 

For,  of  course,  in  those  states  where  joint  tenancy  is  by  stat- 
ute expressly  abolished,  such  a  limitation  would  result  in  cre- 
ating a  tenancy  in  common  in  the  parent  and  the  children  liv- 
ins:  at  the  death  of  the  testator.^ 

In  this  class  of  cases  the  question  frequently  arises  whether 
the  testator  intends  to  create  an  estate  in  joint  tenancy  among 
the  parent  and  children,  or  whether  he  intends  to  give  the 
parent  a  life  estate  with  a  remainder  to  the  children.  In  either 
case  the  word  "  children  "  is  a  word  of  purchase  under  the  sec- 
ond half  of  the  rule  in  Wild's  Case.  But  in  the  one  instance 
the  srift  to  the  children  is  alwavs  immediate  and  vested,  and 
all  take  concurrently;  while  in  the  other  instance  it  is  always 
executory,  and  parent  and  children  take  in  succession.  So  in 
some  instances  it  may  be  contingent  on  the  children  surviving 
the  parent.-  If  the  gift  is  to  the  parent,  either  expressl}''/^/' 
Vfe^  or  at  common  law  Avithout  ^wrr/s  of  limitation,  a,nd  the 
gift  to  the  children  is  to  them  atul  their  heirs,  or  in  any  terms 
which  would  convey  the  fee  to  the  children,  it  is  evident  that 
the  testator  could  not  have  meant  them  to  take  as  joint  ten- 
ants. He  must  have  intended  a  life  estate  in  the  parent  and  a 
remainder  in  fee  in  the  children  as  purchasers.  This  would  be 
the  case  where  the  gift  was  to  the  parent  for  the  benefit  of 
herself,  and  after  her  death  to  go  to  her  children? 

156;  Utz's  Estate.  4.3  Cal.  (1872),  200,  73,  75;     Hampton    v.   Wheeler,    99 

204;  Lord  v.  Moore.  20  Conn.  (1849),  N.  C.  222,  6  S.  E.  R.  236;  Silliman  v. 

122.  120:  Hoyle  v.  Jones,  30  Ga.  40;  Whitaker.    119  N.  C.  (1896),   89,  93; 

McCor.J  V.  Whitehead  (Ga.),  25  S.  E.  Cressler\s  Estate,  149  Pa.  St.  427,  434; 

R  767:  McRea  V.  Button.  95  Ga.  267.  Graham   v.  Flower,   13  Serg.  «&  R. 

22  S.  E  R.  149:  Barclay  v.  Piatt,  48  (Piu)   439:  McKeelian   v.  Wilson.  53 

N.  E.  R  972.  171)  111.  3^4,  387:  Moore  Pa.  St.  (186G).  74;  Shirlock   v.   Shir- 

V.  Gary.  48  N.  E.  R.  630.  149  Ind.  51,  lock,  5  Pa.  St.  (1846),  367;  Cannon  v. 

53;  Noble  v.  Temple  (Kan.),  49  Pac.  Ai)person,  14  Lea  (Tenn.),  553;  In  re 

R   598:   Proctor  v.   Smith,   8   Bush  Mcintosh's  Estate,  27   Atl.  R.  1044. 

(Ky.),  81,  84;   Weaver   v.   Weaver's  158  Pa.  St.  528,  27  Atl.  R.  1047.  158 

Ex'rs  (Ky.).  18  S.  W.  R  228;  Annable  Pa.  St.  528,  27  Atl.  R  1048,  158  Pa.  St. 

V.  Patch.  3  Pick.  360;  Allen  v.  Hoyt,  528. 

5  Met.   (Mass.)  324;  Stevens  v.  Bar-  >  .l»^f.  ^  .539. 

row   (Ky..    1>S9>>),   46   S.    W.    H.   6H6;  -i  Compare  a«f«',  gjj  5.53,  554 

Hamilton    v.    Pitcher,   53    Mo.   334;  '.Jaffrey  v.  Himywood.  4  Mad.  398; 

Jone«    v.    .Jones,    13    N.   .1.    E<|.    23;  Lewis  v.  Citizens'   Bank,  95   Ky.  79. 

(iraves  v.  Graves,  55  Hun,  5M.  H  N.  Y.  23  S.  W.  R.  667.     A  residuary  gift  to 

S.  2><4;  M'Kjre   v.  Leiuh,  5  ,Joiies'  (5H  tlie  daughter  of  the  testatrix,  in  kcu- 

N.  C.  1860)  Eq.  ►W;  (Jay  v.  Riker.   5  era!  language,  for  the  «(»/*'  use  i>f  lur- 

icL  :M4;  Hunt  v.  Sntterwlmit,  h5  N.  C.  xilf  iiml  rliililrni,  gives  the  daughter 


774  LAW   OF  WILLS.  [§  583. 

§  583.  IVliethor  ijift  '^^to  A..in(l  his  cliiljlreii  "  is  iinnuMliuto 
or  ill  rcniiiiiidcr  to  the  cliildreu. —  AVlu'thcr  l>y  a  devise  which 
is  ex|)i\'ssly  and  in  trrnis  to  A.  and  his  or  her  chihlren,  or  for 
tho  licnofit  of  A.  and  his  or  her  chihlren,  tlie  testator  intends 
an  immediate  g-ift  to  the  parent  and  the  chihlren  to  be  enjo3'ed 
concnrrently,  or  whether  he  intends  to  give  a  life  estate  to  the 
parent  with  a  remainder  to  the  children,  has  been  referred  to 
in  the  last  section.  It  is  a  qncstion  of  the  intention  of  the  tes- 
tator, to  be  determined  on  the  language  of  the  will;  and,  as 
no  two  wills  are  exactly  alike  in  language,  the  question  pre- 
sents great  difficulty. 

If  the  estate  is  devised  expressly  for  the  benefit  of  the  par- 
ent and  her  children,  no  express  reference  being  made  to  the 
postponement  of  the  possession  of  the  children  until  after  the 
death  of  the  parent,  it  would  seem  reasonable  to  assume  that 
the  testator  intended  that  all  should  take  concurrently. •  This 
is  the  ordinary  construction  where  children  are  living  at  the 
death  of  the  testator,  and  there  is  nothing  in  the  will  to  indi- 
cate that  they  and  the  parent  should  take  otherwise  than  con- 
currently and  as  joint  tenants.  It  is  supported  by  the  English 
and  American  cases.-  But  the  courts  have  also  held  that  by 
a  devise  to  A.  for  the  benefit  of  himself  and  his  children,  the 
testator  intended  that  A.  should  take  a  life  estate  with  a  re- 
mainder in  fee  to  the  children.* 

the  fee-simple,  and  the  words  men-  dren,  would  create  an  estate  to  be 
tioned  do  not  make  the  children  ten-  taken  concurrently,  not  in  succes- 
ants  in  common  with  her,  nor  vest  sion.  But  where  the  object  of  the 
in  them  a  remainder  at  her  death,  testator  is  to  provide  for  the  support 
Small  V.  Field,  1-i  S.  W.  R.  815,  103  of  A.  during  his  or  her  life,  it  has 
JIo.  104.  been  generally  held  that  A.  will  take 
iPyne  v.  Franklm,  r>  Sim.  458;  a  life  estate  with  a  remainder  to  the 
Newill  V.  Newill,  L.  K.  7  Ch.  253,  L.  R.  children.  This  construction  would 
12  Eq.  432.  be  favored  wliere  the  devise  is  to  the 
-  See  §  582.  widow  of  the  testator  "  for  the  bene- 
SFurlow  V.  Merrell.  23  Ala.  (1852),  fit  of  herself  and  her  children:"  for 
705,  716;  Crawford  v.  Forrest,  77  Fed.  if  all  take  concurrentl}',  any  child 
R.534;  InreSavmders,4Paige(N.  Y.),  might  demand  partition  when  he 
293;  Rich  v.  Rogers,  14  Gray  (Mass.),  or  she  became  of  age,  which  would 
174,  178;  Goss  v.  Eberhart.  29  Ga.  result  in  depriving  the  widow  of  the 
(1859),  545;  Faribault  v.  Taylor,  5  testator  of  the  support  for  the  re- 
Jones'  Eq.  (N.  C.)  219,  220.  It  would  mainder  of  her  life,  which  he  evi- 
seem  at  first  glance  that  a  devise  to  dently  meant  to  give  her.  So,  too, 
-.4.  and  In's  children,  or  to  A.  for  the  it  has  been  considered  that  the  cir- 
henefit  of  himself  or  herself  and  cliil-  cumstajice  that  the  devise  is  in  trust 


§  5S3.]       WHEN  "children"  a  word  of  limitation.  775 

And  such  a  construction  will  be  materially  aided  if  a  devise 
over  is  inserted,  to  talre  effect  in  the  event  that  the  parent  shall 
leave  no  children  him  surviving}  The  testator  may,  of  course, 
by  express  language  avoid  the  operation  of  the  rule  that  a  de- 
vise to  A.  and  his  children  shall  make  them  joint  tenants,  and 
that  they  shall  take  concurrently,  by  language  which,  either 
expressly  or  by  implication,  points  out  that  he  intends  them  to 
take  in  succession. 

The  strongest  indication  of  such  language  would  be  where, 
after  giving  an  estate  to  A.  and  his  children,  he  provides  that 
it  shall  be  enjoyed  by  the  parent  during  his  life,  and  that  it 
shall  go  after  his  or  her  death  to  the  children.-  In  all  these 
cases  the  word  "  children  •'  will  be  construed  as  a  word  of  pur- 
chase, irrespective  of  the  fact  that  the  parent  had  or  had  not 
children  at  the  time  of  the  maldng  of  the  will? 

Very  slight  circumstances  are  usually  permitted  to  rebut  the 


for  the  wife  of  the  testator  and  her 
children  may  indicate  that  he  in- 
tended she  should  take  a  life  estate; 
that  is  to  say,  the  income  of  the 
whole  property  for  her  life  to  be  paid 
by  the  trustees,  with  a  vested  re- 
mainder in  the  capital  at  her  death 
for  the  children.  Rich  v.  Rogers,  14 
Gray  (Mass.),  174,  178;  Weaver  v. 
Weaver,  93  Ky.  491;  Chusnet  v. 
Meares,  3  Jones'  (N.  C.)  Eq.  416.  419. 
The  cases  distinguish  between  a  de- 
vise to  "  A.  and  her  children,  if  site 
shall  have  any"  and  a  devise  to  A. 
and  her  children  at  her  death.  In 
the  first  class  of  cases  the  testator 
means,  if  the  parent  shall  have  any 
children  living  at  his  death  or  at  any 
time  during  her  life,  that  parent  and 
children  shall  take  as  joint  tenants 
or  tenants  in  common.  In  the  sec- 
ond class  of  cases  he  means  to  give 
the  parent  a  life  estate,  with  a  re- 
mainder to  her  children  who  are 
living  at  her  death.  (jillt*s|iie  v. 
Sherman,  02  Gn.  2^;  Silliman  v. 
WhiUiker,  119  N.  C.  H9,  9',. 

>S<-haefer  v.  Soliaefcr,  141  111.  U37 
(1893),  31  N.  E  R  i:J(S. 


2McCroan  v.  Pope  (1850),  17  Ala. 
612,  616;  Furlow  v.  Merrell,  23  Ala. 
705,  716;  Goss  v.  Eberhart,  29  Ga.  545; 
Kelly  V.  Gonce,  49  111.  App.  82;  Peck- 
ham  V.  Lego,  57  Conn.  558,  19  Atl.  R 
392;  Moores  v.  Hare  (Ind.,  1896),  43 
N.  E.  R  870;  Mercantile  Bank  v.  Bal- 
lard's Assignee,  83  Ky.  (1885),  481; 
Demill  v.  Reid,  71  Md.  (1889),  175,  192, 
17  AtL  R  1014;  Dodd  v.  Winship,  144 
Mass.  461,  464,  11  N.  R  R  588;  Hub- 
bard V.  Selser,  44  Miss.  (1870),  704, 712; 
Rhodes  v.  Shaw  (N.  J.),  11  AtL  R  116; 
Huber  v.  Donohue,  49  N.  J.  Eq.  125 
(1891),  23  Atl.  R.  495;  Budd  v.  Haines, 
52  N.  J.  Eq.  488  (1894),  29  AtL  R  170; 
Losey  v.  Stanley,  147  N.  Y.  560,  43 
N.  E,  R  8:  Perry  V.  Lowber,  49  Pa. 
St.  483  (1802);  Cote  v.  Von  Bonnhorst, 
41  Pa.  St.  (1861).  243;  Harris  v.  McEl- 
roy,  45  Pa.  St.  216;  Springer  v.  Arun- 
del. 64  Pa.  St.  214;  Christie  v.  Phyfe. 
19  N.  Y.  344,  354;  Barker's  Estate, 
159  Pa-  St.  518,  28  Atl,  R  308;  Reeder 
V.  S|K.'arman,  6  Rich.  (S.  C.)  Eq.  88. 

2  In  re  Saunders,  4  I'aijje  Cli.  (N.  Y.) 
293,  297. 


776  LAW    OK    WILLS.  [§  58-i, 

presumption  tliat  the  testator,  in  a  devise  "to  A.  and  his  chil- 
dren *'  siuipl  V,  uslhI  the  word  as  a  woril  of  purchase,  indicating  an 
intention  that  they  shall  take  concurrently  with  the  parents; 
particularly  in  the  case  of  a  devise  of  personal  ])roperty,  as,  for 
exani])le,  of  money  for  the  use  and  henelit  of  the  parent  and 
his  children.  If,  in  a  bequest  of  personal  property,  the  testa- 
tor provides  that  the  legacy  to  A.  and  liis  children  shall  be 
secured  for  their  use,'  or  where  the  children  are  to  take  in 
unecpial  shares  with  the  parent,-  or  where  a  trustee  is  ap- 
pointed for  the  parent  and  the  children,''  the  ])erson  named  as 
tht»  parent  will  enjoy  the  income  of  the  legacy  for  life,  and  at 
his  death  the  capital  Avill  go  to  his  cliihlren  as  remaindermen. 
And  generally,  in  a  gift  of  personal  property,  where  the  testa- 
tor directs  that  after  the  death  of  the  parent  it  shall  be  paid 
over  to  the  children,  the  parent  will  take  a  life  estate,  unless 
it  is  clearly  to  be  seen  from  the  context  that  the  testator  in- 
tended him  or  her  to  have  an  absolute  interest.^ 

^  oS+.  ^Vliether  the  rule  in  AVild's  Case  is  applicable  to 
personal  property. —  The  earlier  cases  decided  in  the  English 
courts  of  chancery  refused  to  apply  the  first  clause  of  the  rule 
in  Wild's  Case  to  gifts  of  personal  property.  If  the  gift  of 
money,  leaseholds,  etc.,  was  made  to  A.  and  his  children,  and 
he  had  none  at  the  death  of  the  testator,  the  application  of  the 
rule  would  give  him  an  absolute  title  to  the  personal  property; 
for  it  is  a  rule  of  common  law  that  language  which  creates  a 
fee-tail  in  real  property  will  give  the  absolute  title  to  personal 
property.'^  And  the  result  of  construing  the  w^ord  "  children  " 
as  a  word  of  limitation  w^ould  be  that  the  parent  Avould  have 
the  whole  interest  and  could  alienate  without  the  consent  of 
the  children.^  Whether  the  rule  is  applicable  to  personal  prop- 
erty is  not  of  paramount  im})ortance ;  for,  if  it  be  not  applicable, 
still  the  absolute  interest  in  the  personal  property  will  pass 
Avithout  words  of  limitation,  both  at  common  law^  and  now^  par- 

*  Vauf^han  v.  ^larquis  of  Headfort,  ■•  Huglies  v.  Drovers  &  Mechanics* 

10  Sim.  039;  Combe  v.  Hughes,  L.  R  Nat.  Bank  (Md.),  38  Atl.  R.  936. 

14  Eq.  41.-,.  5  3  Black.,  p.  398. 

2  Armstrong  V.  Armstrong,  L.  R.  7  «Buffar  v.   Bradford,  2   Atk.  220; 
Eq.  522.  Audsley  v.  Horn,  1  D.  F.  &  J.  226,  2G 

3  Morse  v.  Morse,  2  Sim.  485.  See  Beav.  195;  Heron  v.  Stokes,  2  Drew, 
also  note  2,  p.  775.  &  W.  89. 


§  5S4.]  WHEX  "children"    a    -word    of    LIMITATION".  TT7 

ticularly,  under  the  various  statutes  existing  in  England  and 
America.  An  exception  to  this  rule  occurs  in  the  case  of  an 
annuity,  which,  if  given  without  words  of  inheritance  or  limita- 
tion, is  conclusively  presumed  to  be  for  the  life  of  the  annui- 
tant.' And  under  the  rule  that  an  estate  in  tail  cannot  be  cre- 
ated in  an  annuity,  the  limitation  of  an  annuity  to  A.  and  her 
children  would  simply  create  a  conditional  fee  in  the  annuity.'- 

1  Savery  v.  Dyer.  Amb.  139;  Yates        2  Stafford  v.  Buckley,  2  Ves.  170. 
V.  Maddan,  3  M.  &  G.  333. 


CHAPTER  XXVIII. 


GIFTS  TO  FAMILIES  AND  RELATIONS  AS  PURCHASERS. 


S  585. 


Definition  of  the  word  "  fam- 
ily"—  Gifts  to  f.amilies,  when 
void  for  uncertainty. 
586.  The  word  "  family  "  may  be 
equivalent  to  "heir." 

The  word  "family"  may  be 
equivalent  to  ''children" — 
"When  the  head  of  the  fam- 
ily is  included. 

The  word  "  family  "  may  mean 
relations  or  next  of  kin. 

589.  Definition  of  the  word  "rela- 

tions "  as  statutory  next  of 
kin. 

590.  "Relations"  presumed  to  mean 


587. 


588. 


those  by  consanguinity  — 
llusband  and  wife,  when  in- 
cluded among  relations  or 
next  of  kin. 
g  591.  Gifts  to  relation  in  the  singu- 
lar—  When  illegitimate  re- 
lations are  included. 

592.  Provisions  made  for  the  poor 

or  needy  relations  of  the  tes- 
tator. 

593.  Powers  of  distribution  among 

relations. 

594.  Distribution  among  relations 

as   a    class    is   usually  p^r 
capita. 


§  585.  Definition  of  the  word  ^^  family  " — Gifts  to  fam- 
ilies, when  Yoid  for  nncertainty. —  The  meaning  of  the  word 
"  family  "  is  always  to  be  gathered  from  the  whole  will,  read 
in  the  light  of  the  circumstances  surrounding  its  execution.  It 
is  a  word  of  very  flexible  meaning,  depending  upon  the  inten- 
tion of  the  testator.  It  is  often  difficult  to  determine  what  per- 
sons he  intends  to  be  included  under  the  term. 

The  word  has  several  ordinary,  and,  we  may  say,  primary 
meanings.  It  may  mean  those  who  live  under  the  same  roof 
with  the  pater  familias;^  that  is,  hi-e  household,  his  wife,  chil- 
dren and  servants.  This  is  not  its  ordinary  meaning  as  used  in 
wills.'^  It  may  also  mean  a  man's  wife  and  children,  and  this 
is  a  very  common  meaning  in  wills.  Again,  the  Avord  is  often 
used,  particularly  where  a  person,  whose  family  is  spoken  of, 

V.  Railroad  Co.,  154  Mass. 


1  Dodge 
299. 

2  "A  mere  aggregation  of  individ- 
uals under  one  common  roof  or 
within  the  same  curtilage,  although 
devoting  their  attention  to  a  com- 
mon object,  the  promotion  of  their 
mutual  interest  and  social  happiness, 


as  the  inmates  of  a  boarding-hoxise 
or  persons  employed  in  the  capacity 
of  servants,  does  not  of  itself  consti- 
tute a  family."  Roco  v.  Green,  50 
Tex.  (1878),  483, 490:  Putnam  v.  South- 
ern Pac.  R  Co.,  27  Pac  R.  1033,  21 
Oreg.  230. 


§  oSC]  GIFTS   TO    KELATIONS    AS    PrKCHASERS.  779 

has  no  wife  or  children^  to  indicate  his  or  her  brothers  and  sis- 
ters, or  his  statutory  next  of  kin;  and  sometimes,  in  a  very 
"wide  sense,  to  indicate  the  family  stock;  that  is,  those  persons 
of  the  same  name  who  are  descended  from  a  common  though 
remote  ancestor.^ 

Under  some  circumstances  a  gift  of  personal  property  to  the 
family  of  the  testator,  or  to  the  family  of  some  other  person, 
may  be  void  for  uncertainty  as  to  whom  the  testator  intends.- 
Thus,  "where  the  testator  gave  a  remainder  in  personal  prop- 
erty to  be  divided  among  her  daughters  and  "  their  husbands 
and  families,''^  ^  where  the  gifts  were  "  to  T.  H.  forever,  hoping 
he  will  continue  them  ifi  the  family,''''  *  where  the  gift  was  one- 
half  to  i\iQ  family  of  the  testator^s  wife  and  one-half  to  his  broth- 
ers^ and  sisters''  family  equally  to  be  divided,*  the  gift  is  void 
for  uncertainty.  The  cases  in  which  a  provision  for  a  family 
has  been  held  void  for  uncertainty  are  not  numerous,  and  the 
courts,  in  modern  times  particularly,  strain  after  a  construc- 
tion which  will  make  a  gift  to  a  family  effectual.^ 

p  586.  The  word  ^^  family  "  may  be  equivalent  to  ^'heir." 
In  England,  from  the  time  of  Lord  Ilobart,  it  has  been  a  rule 

1  '•  The  word  '  family '  may  mean  a  3  Robinson  v.  Waddelow,  8  Sim.  134. 
man's  household,  consisting  of  him-  "The  word  'family'  is  an  uncertain 
self,  his  wife,  children  and  servants;  term;  it  may  extend  to  grandchil- 
it  may  mean  his  wife  and  children,  dren  as  well  as  children.  The  most 
or  his  children  excluding  his  wife;  reasonable  construction  is  to  reject 
or,  in  the  absence  of  wife  and  chil-  the  words  'husbands  and  families.'" 
dren,  it  may  mean  his  brothers  and  By  the  court  on  page  137. 

sisters  or  next  of  kin;  or  it  may  * Harland  v.  Trigg,  1  Bro.  C.  C.  142, 

mean  the  genealogical  stock  from  144. 

which  he  may  have  sprung."  2  Story,  ^  Doe  d.  Ilayter  v.  Joinville,  3  East, 

Eq.  Jur.,  §  10656.   "The general  mean-  172.     The   testator  had  two  sisters, 

ing  of  a  term  in  question  ol)tains  of  one  of  whom  died  before  him,  leav- 

course  in  wills  only  where  it  is  not  ing  children,  and  the  other  survived 

interpreted  by  tlie  context."    O'Uara  him  and  had  children,  ami   lie  had 

on  Int.  of  Wills,  317.  also  one  brother  surviving  who  had 

2  Li  ley  V.  Hey.  1  Hare,  500;  T>ambe  six  children;  the  gift  was  void  be- 
V.  Eame.s,  L.  R  10  E<i.  207;  Williams  cause  the  court  could  not  say  who 
V.  Williams,  1  Sim.  (N.  S.)  358,  371;  was  meant  by  the  term.  See  also 
Gregory  v.  Smith,  9  Hare,  708;  Cha|)-  Neo  v.  Neo.  L.  R.  «  P.  C.  381.  In  Tol- 
ton  V.  Bulmer.  10  Sim.  4'20;  Hess  v.  son  v.  Toison,  10  Gill  &  J.  (Md.,  1838), 
Singler,  114  Mjiss.  (IH73),  50,  5J»;  An-  131),  the  testator  "requt'stod  his  seven 
drewH  V.  Hank,  3  Allen  (Mjuw.),  313;  s»ons  to  take  t-artj  of  their  brotiicr  A. 
B**aleH  V.  (Tisfonl,  13  Sim.  502;  Park-  and  Itis  family.  " 

jnwju's  Truht,  1  Sim.  (N.  S.)  2Li  "2  Ik-dlit-ld  on  WjIIs,  i».  72. 


780  LAW  or-  WILLS.  [§  5S7. 

that  the  word  '*  family,"  in  a  (jift  of  real  2'>roperiy,  whether  in 
possession  or  in  remainder,  shall  be  conclusively  understood  to 
mean  the  heir.  This  construction  is  due,  in  \\\Q,fii'iit  place,  to  a 
great  desire  to  avoid  intestacy,  and  secondly^  to  the  favor  with 
which  the  Knuiish  courts  regard  the  lieir-at-law.^ 

Thus,  a  devise  of  all  the  testator's  real  estate  to  A.,  "m  the 
fullest  confidence  that  she  woidd  devise  the  property  to  hisfam- 
■ih/r  is  certain  and  valid,  and  a  precatory  trust  arises'  for  the 
benelit  of  the  testator's  heirs.'  !So  a  gift  of  land  for  the  pur- 
pose of  aiding  any  member  of  my  family  wfu)  may  he  in  distress 
is  certain  and  valid.* 

AV^'here  a  testator  speaks  of  his  family  under  circumstances 
where  it  is  s3'nonymous  with  his  heir,  he  will  be  presumed  to 
mean  the  person  who  is  his  heir  at  his  death.'  But  when  he 
speaks  of  the  family  of  another,  he  may  mean,  not  the  heir  of 
that  person,  but  the  heir  apparent  at  the  date  of  the  execution  of 
tJie  wilU 

%  5S7.  The  word  "family"  maybe  equivalent  to  children 
wheu  the  head  of  the  family  is  included. —  In  most  cases  the 
court  will  construe  the  word  "family"  to  mean  children.  If 
the  testator,  being  married,  and  leaving  a  wife  and  children, 
gives  his  wife  a  sum  of  money  for  the  benefit  of  his  family,  he 
may  mean  his  children  only ;  for  when  a  married  man  men- 
tions his  family,  he  usually  means  his  children  alone.''  So,  a 
provision  for  the  support  of  the  family  of  the  testator  Avas  held 

1  Chapman's  Case,  Dyer,  3336.     If  Griffith  v.  Evans,  5  Beav.  241;  Ward 

land  be  devised  to  the  stock,  or  fani-  v.  Peloubet,  10  N.  J.  Eq.  (1855),  304; 

ily,  or  house  of  A.,  it  shall  be  under-  Lutte  v.  Bennett,  5  Jones'  Eq.  (N.  C.) 

stood  of  the  lieir  principal  of  the  per-  156;  Poor  v.  Insurance  Co.,  125  Mass. 

son.     Counden    v.   Clerke.   Hob.   29,  274,  277. 

33rt.     "The  term  ' family '  primarily  *  Hill  v.  Bowman,  7    Leigh  (Va., 

means  children  as  regards  bequests.  1836),  650. 

In  devises  of  realty, '  family '  means  ^  See  §610. 

lieirs,  or  heirs  of  the  body.  The  word  ^  Doe  d.  Chattaway  v.  Smith,  5 
*  family,'  however,  will  often  be  con-  Maule  &  Sel.  126.  A  devise  to  "  A. 
strued  to  mean  relatives  rather  than  and  B.,  and  to  their  respective  fam- 
children.  The  general  meaning  of  a  ilies  by  way  of  seniority,"  gives  an 
term  obtains,  of  course,  in  wills  only  estate  in  fee-tail  to  A.'s  sons,  accord- 
where  the  term  in  question  is  not  in-  ing  to  seniority,  at  the  death  of  the 
terj)reted  l)v  the  context."  O'Hara  testator.  Lucas  v.  Goldsmid,  29 
on  Int.  of  Wills,  317.  Beav.  657,  OCO. 

-Post,  t  792  et  seci.  'In  re  Hutchinson,  L.  R.  8  Ch.  Div. 

3  Wright  V.  Atkyns,  17  Ves.  255;  540. 


§  5S7.] 


GIFTS    TO    KELATIOXS    AS    rUECHASERS. 


781 


to  be  for  the  benefit  of  bis  widow  and  bis  children,  or  tbeir 
immediate  descendants,  so  long  as  they  reside  together  in  one 
household.^  If  some  of  the  children  are  self-supporting,  while 
others  are  minors  living  with  tbeir  mother,  it  will  be  presumed 
that  he  did  not  intend  to  include  those  who  could  support 
themselves.- 

The  word  "  family "  will  be  construed  to  mean  children, 
where  a  testator  gives  property  to  the  family  of  another,  if 
from  the  context,  and  because  of  the  fact  of  the  property  being 
personal,  it  is  apparent  that  the  testator  did  not  mean  heirs. 
"Where  a  testator  gave  the  proceeds  of  his  property  "  to  the 
families  of  Cyrus  and  John  Grijjin,  cJiildren  in  equal  j)roj)0/'- 
tio7i,^'^  or  to  be  divided  between  his  ''^  brother  A.'^s  family  and 
B.,^-*  to  the  families  of  my  brother  A.-s  four  children,  and  to 
the  children  of  my  sister  B.i^  "  to  be  divided  among  my  cousins 
and  their  respective  families^'' ^  or  for  the  support  of  "^.  and 
her  family  i^'' "'  \l  was  held  that  he  meant  children  of  the  persons 
named,  who  for  that  reason  take  per  stirpes.  A  direction  to 
divide  money  "among  all  of  the  testator's  family  who  shoidd 
J<?  Z/v/wf/"  at  a  date  mentioned  means  among  his  children  to 
the  exclusion  of  his  grandchildren.-  Whether  a  gift  to  A.  and 
his  family,  or  to  A.  and  her  family,  includes  the  husband  or 


1  Bowditch  V.  Andrews,  8  Allen 
(Mass.),  yyy,  341. 

2  In  re  Simon's  Will,  55  Conn.  (1887), 
239,  242,  11  Atl.  R.  36.  Where  the 
testator  had  married  twice,  his  sec- 
ond wife  surviving  him.  and  he  gave 
a  fund  equally  to  be  divided  Intween 
the  familicH  of  hint  self  and  hin  first 
u'ife,  and  himself  and  his  second  wife. 
it  wa-s  held  that  he  meatit  only  those 
of  his  children  (excluding  grandthil- 
dren  whose  i)arents  were  deceased) 
by  his  dilfc'rent  wives  who  were  liv- 
ing with  him  when  the  will  was 
made,  each  family  to  form  a  cla.ss 
and  to  take  per  stirpes.  Townsend 
V.  Townsend.  15(J  Mas.s.  (18U2).  454, 
457,  31  N.  R  It.  (532. 

3  Walker  v.  (iridiii.  11  Wln-at.  (24 
U.  S.)H75,  3Mn. 

*  Silshy  v.  Sawyer,  01  N.  11.  080,  585, 
15  AtL  R  GUI. 


•■'  Allen's  Succession,  48  La.  Ann. 
1036. 

^  In  re  Terry's  Will,  19  Beav.  580, 
582. 

'  Woods  V.  Woods,  1  M.  &  Cr.  401. 

spigg  V.  Clarke,  L.  R.  3  Eq.  672, 
674.  See  Whelan  v.  Reilly,  3  VV.  Va. 
610;  Dominick  v.  Sayres,  3  Sandf. 
Ch.  (N.  Y.)  555;  In  re  Muffett,  55 
L.  T.  671;  Wood  v.  Wood.  3  Hare,  65; 
Blackwell  v.  Bull,  1  Keen,  176:  Park- 
inson's Trusts,  1  Sim.  (N.  S.)  242; 
lieales  v. Crisford,  15  Sim. 5!»2.  Where 
a  gift  was  "unto  my  brothers  and 
sisters  eciually,  and  to  the  families 
ofsucli  as  are  dead,"  it  was  held  that 
families  did  not  include  grandchil- 
dren; liut  tiiul  suns  and  dauglitcrs  of 
brotliers  and  sistt-rs  tcjok  jxr  stirpes 
as  j<)int  tenants.  IJattersby's  Trusts 
(1896).  1  Ir.  K.  (iUO. 


782  LAW    OF    -WILLS.  [§  58S. 

■wife  of  A.,  has  been  iinuh  discussed.  It  depends  always  on 
the  intention  as  expressed  in  the  will.  A  power  to  appoint 
for  the  beuetit  of  a  married  woman  and  "  her  family  "  might 
not  include  her  husband,'  while  a  gift  to  A.  for  the  support  of 
lihih^elfandhisfamil;/  includes  his  wife  and  children,'-  but  not 
step-children.'  A  gift  to  the  sons  and  daughters  of  the  tes- 
tator in  equal  shares,  and  "for  their  families  if  they  have  any  ^'' 
is  for  the  benefit  of  sons  and  daughters  and  their  children  so 
long  as  they  live  together  in  one  household,  and  the  wife  of 
any  sou  so  long  as  she  resides  with  her  husband.'' 

A  gift  to  the  family  of  A.,  siinpliciter,  includes  A.  himself, 
unless  he  is  excluded  by  express  words  or  necessary  implica- 
tion, in  which  case  only  his  children  are  meant.'*  Under  a  be- 
quest to  the  "  families  of  Gregory  and  Geare,"  simpliciter,  the 
children  of  persons  of  that  name  are  entitled,  but  not  the  par- 
ents.*^ AVhere  a  testator  gave  money  to  "A,  and  his  family 
jointly,^''  the  last  word  is  used  in  a  loose  and  vague  sense  and 
does  not  create  a  joint  tenancy.  The  money  should  be  equally 
divided  among  A.,  his  wife  and  their  children  living  at  the 
death  of  the  testator,  excluding  an  after-born  child.'' 

§  588.  The  word  **  family  "  may  mean  relations  or  next 
of  kin. —  The  word  "family,"  in  a  gift  of  property  to  the 
family  of  the  testator,  who  had  no  children,  and  whom  it  was 

iMacLeroth  v.  Bacon,  5  Ves.  159,  ^Bowditch   v.   Andrews,  8   Allen 

167:  Hook  V.  Clippinger,  5Pa.St.385,  (Mass.),  339,  341;    Phelps  v.  Phelps, 

389.     If  there  is  a  gift  to  A.  individ-  145  Mass.  570,  574;  Pigg  v.   Clarke, 

ually,  and  a ?iof/tc?' gift  to  his  family,  L.  R.  3  Ch.  D.  672,  674;  In  re  Mul- 

hiswife  is  excluded  and  his  children  queens  Trusts,  7  L.  R  Ir.  127;  In  re 

take  alL    Wood  v.  Wood,  3  Hare,  Hutchinson,  8  Ch.  Div.  540. 

65,  66.  6  Gregory  v.  Smith,    9  Hare,  708, 

2  Chase  v.  Chase,  2  Allen  (]Mass.),  711:  Barnes  v.  Patch,  8  Ves.  604.609; 
101.  103;  Addison  t.  Bowie,  2  Bland  Wallace  v.  Micken,  2  Disney  (Ohio). 
(Md.),  606;  Osgood  v.  Lovering,  33  564,  569.  Where  a  testator  gave  a 
Me.  464,  467  ('' for  the  benefit  of  the  remainder  to  "my  sister  A.'s  fam- 
faniily  ").  All  of  the  children  are  in-  ily,"  and  a  specific  gift  to  one  of  A.'s 
eluded,  and  not  merely  such  of  the  children,  it  was  held  that  by  family 
children  as  may  have  survived  the  he  meant  children,  including  the  spe- 
testator,  where  the  gift  to  the  family  ciflc  legatee.  Reay  v.  Rawlinson,  29 
was  in  fee-simple.    Taylor  v.  Wat-  Beav.  88,  90. 

son,  35  Md.  (1871),  519.  ^Langmaid  v.  Hurd,  64  N.  K  526, 

3  Bates  V.  Dewson,  128  Mass  334,  527,  15  AtL  R.  130:  Cosgrove  v.  Cos- 
835.  grove  (Conn.,  1887),  38  AtL   R  219; 

*  Bradlee   v.   Andrews,   137  Mass.     Owen  v.  Penny,  14  Jur.,  Pt.  1,  359. 
50,  55. 


§  588.] 


GIFTS    TO   RELATIONS   AS    PURCHASERS. 


rs3 


extremely  improbable  "s^•oukl  have  any/  or  to  the  family  of  a 
person  whom  the  testator  I'jiows  to  he  unmari'ied,  can  only  mean 
kindred  or  relations  of  those  persons.'  This  construction  is 
strengthened  by  the  fact  that  the  situation  of  the  person  makes 
it  improbable  that  there  shall  be  children ;  or  that  the  testator 
had  not  the  future  birth  of  children  to  that  person  in  his  mind 
when  making  the  will.' 

Under  such  circumstances,  where  "  family  "  is  equivalent  to 
"  relations,"  and  the  donee  has  a  power  of  selection,  she  need 
not  confine  herself  to  the  statutory  next  of  kin,  but  may  select 
others.*  Thus,  where  a  testator  gave  personal  property  abso- 
lutely to  his  wife,  with  a  request  that  she  dispose  of  it  among 
her  children,  and  an  expression  that  he  should  be  unhappy  if 
bethought  diWj  one  not  of  her  family  should  benefit  thereby, 
Lord  Cranforth  held  that  the  words  ^'-herfarailii^''  while  am- 
biguous, were  not  confined  to  children,  but  meant  posterity  or 
descendants,  and  also  that  no  trust  was  intended.^ 

The  meaning  of  the  phrase  "  younger  branches  of  the  fam- 
ily of  A."  depends  upon  the  situation  of  A.  as  regards  his  fam- 


1  In  re  Maxon,  4  Jux.  (N.  S.)  307. 

2  Gafney  v.  Kennison,  64  N.  H.  3.54, 
357. 

5  Cniwys  V.  Colman,  9  Ves.  319,  324, 
19  Beav.  581;  Grant  v.  Lynam.  4 
Rus&  292;  Snow  v.  Teed,  L.  R.  9  Eq. 
622,  623. 

«  Snow  V.  Teed,  L.  R.  9  Eq.  622.  623. 

*  Williams  v.  Williams,  1  Sim. 
(N.  S.)  3.5S.  On  page  371  it  is  said: 
"The  word  'family '  is  one  of  doubt- 
ful import,  and  may,  according  to 
the  context,  mean  children  or  heir, 
or  next  of  Kin.  Here  I  thiuk  the 
words  "of  your  family'  are  equiva- 
lent to  'of  your  blood,'  that  is,  'your 
posterity,'  '  your  descendants.'  "  See 
also  L-imlx.'  v.  Eames,  10  Eq.  207. 
271;  and  (iriflith  v.  Evans,  5  Beav. 
241,  where  the  testator  requested  that 
property  Iw  not  alienated  from  liis 
"neare.st  famil}*."  In  Rtiynolds  v. 
Hanna,  5.'j  Fed.  R  783,  one-lmlf  the 
Income  of  m^ney  in  trust  was  to  lie 
exfiended  f(»r  the  benefit  of  "  /jj>»  »o/i 
A.  and  liin  family,"  the  other  half  for 


the  benefit  "of  the  children  of  my 
deceased  daughter  B."  The  testator 
directed  his  executors  that  in  the 
expenditure  of  the  iucome  they 
should  "  keep  in  view  the  education 
and  maintenance  of  my  grandchil- 
dren on  a  scale  comporting  with 
tlieir  condition  in  life."  The  court 
held  that  the  surplus  should  be  in- 
vested for  the  benefit  of  A.  and  his 
family  and  the  children  of  B.  By 
the  "  family  of  A."  the  testator  meant 
his  children,  but  A.  should  partici- 
Iiate.  The  share  for  A.  and  his  fam- 
ily should  be  eijually  divided,  one- 
half  to  A.  and  the  other  Iialf  equally 
divideil  among  liis  children.  The 
expression,  "if  he  shall  get  married 
and  have  a  family,"  as  a  condition 
precedent  to  an  increase  in  the 
amount  of  an  annuity,  means  to  take 
a  wife  and  to  have  i.ssue  by  her.  It 
d(jes  not  mean  marriage  alone  with- 
out children  iM'ing  Ixirn.  SjKjncer  v. 
SiKiueer,  11  Taige  (N.  Y.),  109,  100. 


TS-t  LAW    OF    WILLS.  [§  5S0. 

ily  at  the  time  of  the  execution  of  the  will.  "Where  A.  at  that 
time  had  livin^^  two  dauiihtors,  one  of  whom  had  four  children, 
and  A.  had  also  <;randchildren  by  two  deceased  sons,  a  provis- 
ion of  a  remainder  given  "  to  the  younger  branches  of  his  fam- 
ily and  their  heirs  "  was  held  void  for  uncertainty.^  But  where 
the  provision  was  that  the  devise  should  be  subject  to  such  leg- 
acies as  a  son  of  the  testator  might  bequeath  (in  case  he  died 
without  issue)  "ifo  aiiy  youn(jer  hranches  of  the  family  ^''^  and  the 
testator  had  one  daughter,  who  at  the  date  of  the  will  had  five 
chiUlren,  it  was  presumed  that,  by  the  term  "younger  branches 
of  the  family,"  he  meant  those  children  of  the  daughter  who 
would  not  inlierit  in  the  case  of  the  son's  death  witliout  issue.-' 
§580.  Delinitioii  of  tlie  word  "relations'*  as  statutory 
next  of  kin. —  In  its  broadest  sense  the  word  "  relations  "  of 
A.  includes  persons  who  are  related  to  A.  in  every  degree.  But 
the  word  "  relations  "  primarily  implies  consanguinity.  It 
means  related  by  blood;  and  if  some  line  were  not  drawn  be- 
tween those  nearly  and  those  remotely  related,  every  gift  to 
relations  would  be  void  for  uncertainty.  It  is  like  the  term 
"  family,"  though  more  vague  and  uncertain  of  significance. 
As  it  is  employed  in  wills  it  is  construed  to  mean  those  per- 
sons Avho  Avould,  by  virtue  of  the  statute,  take  the  personal 
property  of  an  intestate  as  his  next  of  kin.*     It  was  at  one  time 

1  Smith  V.  Fleming,  2  Cromp.,  Mee.  tives");  Jones  v.  Roberts.  84  Wis. 
&  Ros.  638.  465,  471;  McNeilledge  v.  Barclay,  11 

2  Doe  d.  King  v.  Frost,  3  Bar.  &  Aid.  Sen  &  R.  (Pa.,  1824),  103;  McNeilledge 
546.  An  exception  of  property  which  v.  Galbraith,  8  S.  &  R.  (Pa.)  43;  Hul- 
I  may  have  derived  from  A.  or  any  ing  v.  Fenner,  9  R.  L  411:  Alexander 
of  her  family  includes  property  de-  v.  Wallace,  8  Lea  (76  Tenn.,  1881), 
rived  from  A."s  father.  James  v.  569:  Storer  v.  Wlieatlej',  1  Pa.  St 
Lord  Wynford.  2  Sm.  &  Gif.  350,  352.  (1845;,  506;  Thomas  v.  Hole,  1  Dick- 

3  4  Kent,  Com.,  p.  339;  Sugden  on  son,  50;  2  Eq.  Gas.  Ab.  332,  368,  pi.  13; 
Powers,  514,  515;  Ross  v.  Ross.  25  Green  v.  Howard,  1  Bro.  C.  C.  31,  33; 
Can.  S.  C.  R  307;  Hall  v.  Wiggin  Edge  v.  Salisbury  (1749),  Amb.  70; 
(N.  H.,  1896),  29  Atl.  R.  671;  Hoey  Rayner  v.  Mo\vbray  (1790),  3  Bro.  C. 
T.  Kenny.  25  Barb.  (N.  Y.)  396;  Gal-  C.  234;  Masters  v.  Hooper  (1793),  4 
lagher  v.  Crooks,  132  N.  Y.  (1892),  Bro.  C.  C.  207.  210;  Lees  v.  Massey,  3 
338,  30  N.  E.  R.  746;  Drew  v.  Wake-  De  Gex  &  Jo.  113,  120;  Re  Caplin's 
field.  54  Me.  (1865),  291,  299;  Esty  v.  Will.  2  Dr.  &  Smale,  527,  530;  Walter 
Clarke,  101  Mass.  38.  39:  Cummings  v.  Maunde,  19  Ves.  423,  426;  Cruwys 
V.  Cummings.  146  Mass.  501.  16  X.  E.  v.  Colman,  9  Ves.  319,  323;  Jones  v. 
R.  401 ;  Darcy  v.  Kelly.  153  Mass.  431,  Colbeck,  8  Ves.  38;  Widmore  v.  Wood- 
437;  Handley  v.  Wrightson,  60  Md.  ruff.  Amb.  636;  Brunson  v.  Wool- 
(1883),    198,  206    (construing    'Tela-  redge,  Amb.  507;  Brown  v.  Higgs,  4 


§  590.]  GIFTS    TO    KELATIONS   AS   PUKCHASERS.  VS5 

regarded  as  doubtful  ■whether  the  next  of  kin  or  the  heir  was 
entitled  to  come  in,  in  a  gift  of  real jpropertij  to  relations.  This 
question  is  now  settled  in  favor  of  the  distributees  under  the 
statute  as  against  the  heir,^  The  presumption  that  the  testator, 
in  a  gift  to  his  relations,  intended  to  comprise  only  those 
■who  would  have  taken  personal  property  had  he  died  intes- 
tate, is  not  conclusive,  though  it  is  very  strong.  The  court 
may  go  outside  of  the  class  of  relations  indicated  by  reference 
to  the  statute,  and  give  to  those  who  are  not  distributees  under 
it.  Thus,  where  a  testator  gave  property  "  to  be  divided  among 
her  relations,  that  is,  the  Greenwoods,  Everetts  and  the  Dows," 
the  Greenwoods,  though  not  within  the  statutory  degrees, 
were  allowed  to  take  jointly  with  the  Dows  and  the  Evere.tts, 
M'ho  were,  as  the  testator  had  thus  expressly  enlarged  the 
meaning  of  the  term.-  "Where  a  limitation  was  to  the  "  near- 
est relations  "  of  my  sisters,  nephews  and  nieces,  the  children 
of  a  sister  who  was  alive  were  permitted  to  take  concurrently 
with  their  parent,  and  with  the  children  of  sisters  who  were 
deceased.^ 

§  590.  Relations  presumed  to  mean  those  by  consanguin- 
ity—  Husband  and  wife,  when  included  among  relations  or 
next  of  kin. —  If  there  is  nothing  to  indicate  that  the  testator 
intended  to  include  his  relations  by  affinity,  they  will  not  take 
under  a  gift  to  relations  simjplioiter}  This  rule  is  not  only  ap- 
plied to  a  class  of  relations  generally,  but  to  a  specific  class,  as 
"  cousins,"  "  nephews,"  etc.^  The  testator  may,  by  proper  lan- 
guage, include  his  relations  or  next  of  kin  by  affinity;  as  by  a 
gift  to  "  my  relations  hy  Mood  or  marriage;  "  *  "  to  my  nephews 

Ves.  718,  719;   Salisbury  v.  Denton,  the  definition  of  tlio  term  to  surviv- 

3  Kay  &  Jolm.  529,  5:}9;  Ilu.skisson  ing  brothers,  sisters,  nephews  and 

V.  Bridge,  4  De  Gex  &  Sin.  215;  In  re  nieces    whose    parents    are    living. 

Holmes,  02  Law  Times,  383;  Fielder  Stamp  v.  Cooke,  1  Cox  Ch.  R.  234, 

V.  Ashworth,  L.  R,  20  Eq.  410,  412;  23(5:  Marsli  v.  Marsh,  1  Bro.  C.  C.  293; 

Richardson  v.  Richardson,  14  Sim.  Smith  v.  Campbell,  19  Ves.  404:  Locke 

52C.  V.  Locke,  45  N.  J.  Eq.  97;  Prall  v. 

'  Walter  v.  Maunde.  19  Ves.  423;  Bevan,  71  Law  Times,  5. 

Doe  d.  Thwaites  V.  Over,  1  Taunton,  <Maitland    v.   Adair,   3    Ves.   231; 

203.  Ilarvey  v.  Harvey.  5  Beav.  134;  Blo». 

2 Greenwood  V.  Greenwood,  1  Bro.  som  v.  Sidway,  5  Uedf,  (N.  Y.)  389; 

C.  C.  :i2,  n.  Craik  v.  I^iml),  1  Colly.  489,  494. 

'Rayner  v.   Mowbray,  3  Bro.  C.  C.  *Sco;<o«/,  i^  .V,)5. 

2''i-\.    But  the  UBUul  rule  ia  to  couliuo  "  Dovi.smo  v.  Mulli.'jh,  5  Von.  520. 
GO 


TSG  LAW    OF   WILLS.  [§  590. 

and  nieces  on  loth  sides;  ^^^  and  even  by  a  gift  to  nieces  or 
nephews  generally,  Avhere  he  has  none  by  consanguinity  at  the 
date  of  the  will,  and  it  is  impossible  that  he  shall  ever  have 
any,  and  his  wife  has  one  or  more.^ 

Whether  the  husband  or  Avife  of  the  testator  or  of  another 
person  shall  be  included  among  the  next  of  kin  or  relations  of 
the  testator  or  of  that  person  is  a  question  which  has  been 
much  discussed.  In  this  connection,  assuming,  as  is  generally 
the  case,  that  relations  and  next  of  kin  are  synonymous,  the 
authorities  are  equally  applicable  to  both  classes  of  devisees. 
A  provision  for  the  next  of  kin  of  A..,  uu'f/ioni  a  reference  to  the 
statute,  includes  neither  the  husband  nor  the  wife  of  A.'  Sa 
far  as  the  words  "  next  of  kin  "  are  concerned,  it  is  well  settled 
that  a  mere  reference  to  the  statute  does  not  enable  a  husband 
to  take,  for  he  is  not  a  distributee  under  the  statute;  and  at 
common  law,  at  least,  does  not  take  a  share  of  his  wife's  per- 
sonal estate  as  a  distributee,  but  by  paramount  right.*  The 
cases  are  neither  harmonious  nor  reconcilable  upon  the  ques- 
tion, whether  a  wife  can  take  under  a  gift  to  the  next  of  kin 
without  a  reference  to  the  statute.  The  majority  of  the  decisions 
in  England  and  in  America,  at  least  where  there  is  no  refer- 
ence to  the  statute,  and  many  of  them,  too,  Avhere  there  is  an 
express  or  implied  reference  to  it,  deny  to  her  the  right  to  take 
under  a  gift  to  the  next  of  kin.'^    The  rule  of  exclusion  has 

iFroglev  y.    Phillips,   3    De   Gex,  art,   7  Johns.    Ch.  (N.  Y.)  229,  246; 

Fisher  &  Jo.  4G6,  30  Beav.  168.  Hamlin  v.  Osgood  (1862),  1  Redf.  409, 

-'Sherratt  v.  Mountford,   L.    R.   8  417;  Slosson  v.  Lynch,43  Barb.  (N.  Y., 

Cli.  Rep.  928;  Adney  v.  Greatrex,  38  1864),  147;  Murdock  v.  Ward,  67  N. 

L.  J.  Ch.  414,  17  W.  R.  637.  Y.  387,  8  Hun,  9;  Luce  v.  Dunham, 

3  Brookfield  V.Allen,  6  Allen  (Mass.),  69  N.  Y.  36,  41;  Irvin's  Appeal,  106 

585,  587:  Harraden  v.  Larrabee,  113  Pa.  St.  176;  Johnson  v.  Johnstone,  13 

Mass.  4:^0,  432;  Garrick  v.  Lord  Cam-  Rich.  (S.  C,  1863),  Eq.  200;  Gittings 

den.  14  Ves.  372.  v.  McDermott,  4  Russ.  384;  Robinson 

••Milne  V.  Gilbart,  2  DeG.,M.  &G.  v.  Smith,  20  Sim.  47;   Halloway  v. 

(Ciian.)  715,  722,  2  De  Gex,  M.  &  G.  Halloway,  5  Ves.  399;   Worseley  v. 

510;    King  v.   Cleaveland,  26  Beav.  .Johnson,  3  Atk.  758;  Garrick  v.  Lord 

166,  4  De  Gex  &  Jo.  477.  Camden,  14  Ves.  372.  386;  Cholmon- 

^Townsend  v.  Radcliffe.  44  111.  deley  v.  Ashburton,  6  Beav.  86;  Watt 
(1867),  446,  450;  Waters  v.  Tazewell,  v.  Watt,  3  Ves.  244, 247 ;  In  re  Jeffeiy's 
9  Md.  (1856),  291,  305;  Harraden  v.  Trust,  L.  R  14  Eq.  136;  Bailey  v. 
Larrabee,  113  Mass.  (1873),  430.  431;  Wright,  18  Ves.  49;  1  Powell  on  De- 
Wright  v.  Trustees  M.  E.  Ch.,  1  Hoffm.  vises,  170  (21  Law  L.);  2  Roper  on 
Ch.  (N.  Y.)  202,  213;  Stewart  v.  Stew-  Husband  and  Wife,  63;    Davies  v. 


§  591.]  GIFTS    TO    RELATIONS    AS    TUECHASEKS.  TS7 

been  applied  to  a  future  Inisl)an{l,  where  the  testatrix  was  not 
a  married  woman  when  she  devised  property  to  "  Iter  next  of 
kin,  according  to  the  statute  concerning  distribution,''''  and  sub- 
sequently married.^  In  England  the  widow  has  been  both  in- 
cluded in,-  and  excluded  *  from,  a  provision  for  those  persons 
who  would  take  under  the  statute  of  distribution,  and  in  some 
cases  under  a  bequest  to  personal  representatives.  Of  course 
it  is  within  the  discretion  of  the  testator  so  to  frame  his  dispo- 
sition in  favor  of  the  next  of  kin,  or  his  relations,  as  to  include 
a  wife  or  husband. 

As  regards  the  meaning  of  the  word  "  relations,''''  it  will  be 
presumed,  in  the  absence  of  anything  to  the  contrary,  that  a 
devise  to  relations  means  those  who  are  such  ly  consanguinity^ 
and  it  will  not  include  either  a  husband  ^  or  a  wife.^ 

§591.  Gifts  to  relation  in  tlie  singular  —  When  illegiti- 
mate relations  are  iucl  nded. —  A  gift  to  the  "  nearest  relat'ion  of 
the  testator  "  is  the  same  as  a  gift  to  his  nearest  relations,  and  if 
several  are  equally  near  they  will  all  take  equally.®  So  a  gift  to 
"  my  nearest  relation  and  the  nearest  relation  of  my  nearest  rela- 
tion "  goes  to  a  half-sister  to  the  exclusion  of  the  children  of  a 
brother.''  Usually  a  gift  to  relations  sinipUciter  does  not  in- 
clude those  Avho  are  illegitimate,  i.  e.,  those  wdiose  parents  or 

Bailey.  1  Ves.  Sr.  84:  Kilner  v.  Leech,  band  in  any  respect.     Of  his  connec- 

10  Beav.  362:  Lee  v.  Lee.  29  L.  J.  Ch.  tion  with  her  family  she  is  the  link 

788.     A  subsequent  Jnishand  of  the  or  commune   vinculum,   but  so  far 

widow  of  the  testator  is  not  includeJ  from  being  connected  with  him  as  a 

among  her  next  of  kin,  to  whom  a  relation  that  her  civil  existence  is 

contingent  gift  is   made.    Jones  v.  melted  into  his,  and  they  together 

Oliver,  ;3.')  N.  C.  3G9.  form  one  person.     A  wtfe,  therefore, 

'  Keteltas  v.  Keteltas,  73  N.  Y.  312,  is  no  more  a  relation  of  her  husband 

31.'}.  than  the  liusband   is   a   relation  t)f 

-Martin  v.  Glover.  1  Coll.  200;  In  himself.     It  was   said  anjuindo,  in 

re  ('oliins,  36  L.  T.  (N.   S.)  437;  Jen-  (iarrick  v.  Lord   Camden,  that   she 

iiirigH  V.  (jower,  2  Coll.  ~>'.i7;  Starr  v.  owes  her  i)rovision  under  the  statute 

N»'\vlx'rry,  23  Ii<;av.  436.  of  distriliution,  nf)t  to  the  supposi- 

'Sfie  cases,  note  0,  p.  786.  tion  tiiat  she  is  one  of  her  husband's 

<  Ksty  V.  Clarke,  101  Mass.  30.  3!(;  kiiiilre<l,  but  to  the  respect  that  was 
Watt  V.  Watt,  3  Ves.  244;  Amlensou  felt  for  her  title  to  the  customary 
V.  Dawwjn,  15  Ves.  .')rj7;  Green  v.  share  which  she  had  previously  en- 
Howard,  1  Hro.  C.  C.  31,  33.  joyed." 

Mn  Storer  v.  Wheatley's  Kx'rs,  1  "ISIarsh  v.  .Miirsli,  1   Bro.  C.  C.  202, 

lijirr  (1  I'a.  St..  IhI.'),,  .*iOO,  it  was  said:  263;   I'yot  v.  I'vdl.  1  \'('s.  337. 

"  But  a  wife  is  not  related  to  iicr  hu.s-  ^  Marsh  v.  Marsh,  1  Bro.  C.  C.  202. 


TSS  LAW    OF    WILLS.  [§  592. 

grandparents  were  not  born  in  lawful  wedlock;'  but  the  tes- 
tator may,  by  suitable  language,  clearly  show  that  he  intends 
to  benefit  illegitimate  relations,  as  where  he  speaks  of  persons 
who  are  illegitimately  related  to  him  as  "  his  cousins."  In  such 
case  the  property  will  go  to  those  who  would  have  been  his 
statutory  next  of  kin  if  they  had  been  legitimate." 

§  5*.)*J.  Provisions  made  for  the  poor  or  needy  relations  of 
the  testator. —  The  construction  of  a  provision  iov  the  poor, 
'needy,  necessitous  or  indigent  relations  of  the  testator,  to  be  car- 
ried out  by  means  of  powers  of  appointment  and  selection  in 
the  executor  or  another  person,  frequently  calls  for  attention. 
The  addition  of  such  words  does  not  always  and  alone  enlarge 
the  meaning  of  the  term  to  include  those  who  are  not  distrib- 
utees under  the  statute.*  In  several  cases,  both  ancient  and 
modern,  in  England  and  America,  a  provision  of  money  in  trust 
for  the  aid,  relief  and  assistance,  or  for  the  maintenance  and 
support,  of  the  poor  and  needy  relations  of  the  testator,  has 
been  regarded  by  the  courts  as  in  the  nature  of  a  public  chari- 
tahle  trust  which  will  be  supported,  and  the  court  will  arrange 
a  scheme  by  which  the  objects  of  the  charity  may  be  definitely 
ascertained,  and  the  intention  of  the  testator  will  be  extended 
beyond  those  who  are  his  statutory  next  of  kin  at  his  death. 
Examples  of  this  rule  are,  where  a  fund  was  to  be  applied  by 
the  executor  for  the  relief  of  "  the  most  destitute  of  the  testa- 
tor's relations,"  ^  for  the  aid  of  "  my  poor  relations,  if  any  such, 
there  be,"^  for  the  benefit  "of  the j'jjoo?'^'^^  relations  of  the  tes- 
tator and  his  wife,'"*  for  the  purpose  of  apprenticing  out  the 
testator's ^00?'  relations^  or  a  provision  "  for  the  nearest  descend- 
ants of  A.  as  they  may  severally  need^^  And  generally  any 
provision  for  poor  relations  will  be  regarded  as  charitable,  and 
will  be  distributed  among  the  testator's  relations,  irrespective 

1  Seale-Hayne  v.  Jodrell,  Gl  L.  J.  den  v.  "VVoolredge.Amb.  507;  Dickson, 

Ch.  70,  71;  Hibbert  v.  Hibbert,  L.  R.  380. 

15  Eq.  372.  4  Gafney  v.  Kenison,  G4  N.  H.  354 

^  In  re  Deakin,  8  Reports,  702;  Seale-  (1887),  10  Atl.  R.  706. 

Hayne  v.  Jodrell,  61  L.  J.  Ch.  70,  71,  ^Darcy  v.  Kelley,  153  Mass.  431,  26 

L.  R,  44  Ch.  D.  590.  N.  E.  R.  1110. 

3  Edge  V.  Salisbury  (1740),  Anib.  70;  « Isaac  v.  Defriez,  Amb.  595,  596, 17 

"Widmore  v.  Woodroffe,  Auib.  0:36;  Ves.  373,  note. 

Carr  v.  Bedford,  2  Ch.  R.  140;  Bruus-  "  Wiiite  v.  White,  7  Ves.  423. 

8  Gillam  v.  Taylor,  L.  R.  16  Eq.  581. 


§  593.] 


GIFTS    TO   KELATIOXS   AS   PURCHASERS. 


TS9 


of  the  statute,  who  may  be  in  need  of  pecuniary  assistance,  to 
the  exclusion  of  those  who  are  not  in  need  of  that  assistance.^ 
§  593.  Pouers  of  distribution  among  relations. —  A  power 
to  appoint  among  relations  may,  according  to  the  terms  of 
the  will,  be  limited  in  its  operation  and  execution  to  those 
persons  who  are  statutory  next  of  kin.-  This  is  the  rule  where 
the  discretion  of  the  donee  as  to  the  objects  of  the  power  is  lim- 
ited and  the  power  is  exclusive.  If  the  donee  of  the  power  or 
the  trustee  has  a  discretion,  not  only  as  to  the  amount  which 
each  relation  is  to  tahe,  but  also  a  discretion  to  select  such  rela- 
tions as  he  may  thinh  most  worthy,  or  as  he  may  think  most  in 
need,  he  may  go  beyond  the  circle  of  the  next  of  kin  indi- 
cated by  the  statute  and  may  appoint  among  any  class  of  re- 
lations he  may  choose.  The  word  will  then  be  construed  in 
its  ordinary  sense.^    In  default  of  the  exercise  of  a  power  to 


1  Mahon  t.  Savage,  1  Sch.  &  Lef . 
Ill;  Attorney-General  v.  Price,  7  Ves. 
423.  A  direction  that  a  sum  be  set 
apart  for  the  maintenance  of  such  of 
the  testator's  heirs  at  law  as  shall  be 
in  need  of  pecuniary  assistance  is 
not  invalid  for  uncertainty;  nor  does 
it  suspend  the  power  of  alienation. 
The  beneficiaries  are  those  persons 
who  are  necessitous  and  wjio  may 
be  selected  by  the  executors  from 
among  those  who  would  have  in- 
lierited  the  land  of  the  testator,  had 
he  died  intestate;  and  if  there  are 
none  such  at  his  death,  the  fund  is 
to  \ye  held  for  any  heirs  who  may  be 
in  need  of  assistance  in  the  future 
(Bronson  v.  St  rouse,  57  Conn.  147,  17 
Atl.  R  CliO);  but  in  New  York  state 
such  a  provision  would  be  invalid. 
Butler  v.  (ireen.  10  N.  Y.  S.  888.  19 
N.  Y.  S.  8'JO,  or,  Hun,  09.  The  courts 
are  loath  to  raise  a  trust  in  favor  of 
relatives  by  mere  pnicatory  words. 
Thus,  a  )tope  that  a  beneficiary  will, 
in  his  will,  "do  justice"  to  the  rela- 
tives of  the  testator  (Hill  v.  Page,  JiG 
S.  W.  R  735,  Tonn.),  or  a  re«jueht  that 
he  will  devise  proiKjrty  Uj  certain 
"  relalivea  who  he  tfiiiiks  may  need 


it "  (Durant  v.  Smith,  154  lilass.  229, 
34  N.  E.  R  190),  or  a  devise,  the  tes- 
tator knowing  that  "if  any  of  her 
immediate  relatives  are  in  need  of 
assistance  by  misfortune  the  devisee 
will  aid  them  "(Toms  v.  Owen,  53 
Fed.  R  417),  creates  no  trust.  See 
§  794,  jiost. 

2  Pope  v.  Whitcombe,  3  Mer.  089; 
Meldon  v.  Devlin,  53  N.  Y.  S.  172, 
31  App.  D.  140;  In  re  Deakin,  8  Rep. 
702,  709  (1894),  3  Ch.  505,  03  L.  J.  Ch. 
779,  71  J.  T.  838,  43  W.  R  70;  Cox  v. 
AVills,  25  Atl.  R  998,  49  N.  J.  Eq.  005. 

3  Cruwysv.  Colman,9  Ves.  319,  324; 
Mahon  v.  Savage,  1  Sch.  &  Lef.  Ill; 
Salisbury  v.  Denton,  3  Kay  &  John. 
520,  529;  Snow  v.  Teed,  L.  R  9  Eq, 
022;  Caplin's  Will,  34  L.  J.  (N.  S.)  Ch. 
578;  Longmore  v.  Broom,  7  Ves.  124; 
Cole  v.  Wade,  10  Ves.  27;  Harding 
V.  CJlyn,  1  Atk.  409:  Grjint  v.  Lyiiani, 
4  Russ.  292,  297.  A  power  to  a[)puint 
among  the  friends  and  relations  of  A. 
is  confined  to  the  relations  of  A., 
the  word  "  frieiuls "  being  disre- 
garde<l,  as  it  is  synonymous  with  re- 
lations. Caplin's  Will,  2  Drew.  & 
Siiiale,  527,  531;  Cower  v.  Maiinvar- 
ing,  2  Ves.  87,  110. 


790  LAW    OF    WILLS.  [§  594. 

appoint  among  relations,  equity  will  (listril)ut(>  tlio  fund  among 
those  who  wouUl  take  as  distributees  under  tlio  statute,  as  of 
the  death  of  the  testator,  and  tliey  will  take  i^er  caj)lta} 

§  504.  Distribution  among  relations  as  a  class  is  usually 
per  capita. —  It  would  seem  that  where  reference  is  made  to 
the  statute  in  order  to  ascertain  the  meaning  of  the  word  "  re- 
lations," the  statute  would  also  be  employed  in  order  to  ascer- 
tain the  mode  and  proportion  of  distribution.  But  it  was 
very  early  held  that  relations  would  take  ^xv  capita;  ^  and  this 
rule  has  been  adhered  to,  pai'ticularly  where  the  testator  has 
added  limiting  or  enlarging  phraseology  to  the  word  "rela- 
tions; "  as  where,  in  one  case,  the  testatrix,  dying  without  leav- 
ing issue,  devised  her  property  to  her  relations,  and  "  to  such 
only  as  claim  within  two  months,"  and  directed  that  the 
executors  should  advertise  for  them.'  In  these  cases,  where 
relations  are  designated  as  members  of  a  class,  only  those  per- 
sons who  ansioer  to  tJie  description  of  relations  at  the  death  of 
the  testatrix  are  permitted  to  take,*  even  where  they  are  not  to 
take  until  after  the  expiration  of  a  prior  life  estate.-^  If  the 
testator  has  devised  his  property  to  his  nearest  relations  and. 
A..^  the  division  will  be  per  stirpes;  as  in  the  case  of  a  similar 
provision  for  the  next  of  kin  or  children  in  connection  with  a 
stranger.^  Though  the  addition  of  the  word  "  near  "  to  rela- 
tions will  not  exclude  any  who  would  take  by  representation 
under  the  statute,  the  effect  of  a  devise  to  "  nearest  relations  " 

1  Attorney-General  v.  Doyley,  2  Eq.  •*  See  also  Rayner  v.  Mowbray,   3 

Ca.Ab.  194:  Darcyv.Kelle}-,  153  Mass.  Bro.  C.  C.  234;  Masters  v.  Hooper,  4 

431,  437,  26  N.  E.R.  lllorMeldon  v.  Bro.  C.  C.  207.     A  gift  to  relations, 

Devlin,  53  N.  Y.  S.  172,  31  App.  Div.  -wlio  are  to  claim  within  a  year,  is 

146,  also  holding  tliat  the  next  of  undoubtedly     valid.      Honeywood's 

kin  take  a  vested  right  to  and  inter-  Will,  Amb.  708. 

est  in  the  property,  subject  to  dimi-  5  in  re  Nash,  71  Law  T.  (N.  S.)  15; 

nation  or  defeat  by  the  appointment  Prall  v.  Bevan,  id.    That  nearest  re- 

under  the  power.  lations  may  include  a  sister-in-law, 

•J  Thomas  v.  Hole,  1  Dickins,  50;  see  Hall  v.  Wiggin  (N.  H.),  29  Atl.  R 

Green  v.  Howard.  1  Bro.  C.  C.  31.  671. 

3  Tiffin  V.  Longman,  15  Beav.  275,  6  Young's  Appeal,  83  Pa.  St.  (1896), 

276.     So,  also,  where  a  testatrix 'di-  59:  McNeilledge  v.  Galbraith,  8  Serg. 

rected  that  the  property  should  pass  &  R.  (Pa.)  43;  McNeilledge  v.  Barclay, 

to  her  relations  "in America."  Eagles  11  Serg.  &  R.  (Pa.)  103. 
V.  Le  Breton,  42  L.  J.  Ch.  362,  L.  R. 
15  Eq.  148. 


§  594.]  GIFTS   TO   KELATIOXS   AS    PUKCHASEKS.  Y91 

of  A.  is  that  the  surviving  brothers  and  sisters  of  A.  will  take 
to  the  exclusion  of  the  children  of  those  deceased  who  would 
take  by  representation  in  place  of  their  parent.^ 

1  Locke  V.  Locke,  45  N.  J.  Ec[.  97,  C.  C.  293:  Davenport  v.  HasselI,Busb. 

«8;  Cox  V.  Wills,  49  N.  J.   Eq.  130,  Eq.  29:  Enuis  v.  Pentz,  3  Bradf.  Sur, 

135;  Hall  v.  Wiggin  (N.  H.),  29  Atl  (N.  Y.)  383. 
R  573,  671;  Marsh  v.  Marsh,  1  Bro. 


CHAPTER  XXIX. 


GIFTS  TO  NEPHEWS  AND  NIECES,  BROTHERS  AND  SISTERS, 
DAUGHTERS,  COUSINS,  HUSBAND  OR  WIFE,  TO  SERVANTS, 
AND  TO  PERSONS  OF  THE  TESTATOR'S  NAME,  AS  PURCHAS- 
ERS. 


^  595, 


696. 


"Nephews"  and  "nieces"  mean 
primarily  those  by  consan- 
guinity. 

When  a  provision  for  neph- 
ews and  nieces  will  include 
great-nepliews  and  great- 
nieces, 
597.  Pi'esumption  tliat  legitimate 
nephews  and  nieces  are 
meant. 

Children  of  a  nephew  or  niece 
may  take  parent's  shara 

Gifts  to  brothers  and  sisters. 

Gifts  to  daughter  or  daugh- 


598. 


599, 
600, 


ters  —  Number  incorrectly 
stated. 
§  601.  Gifts  to  husband  or  wife  — 
When  claimed  by  a  person 
who  is  not  a  lawful  husband 
or  wife. 

602.  From  what  time  a  will  speaks 

as  respects  a  devise  to  the 
husband  or  wife. 

603.  Gifts  to  cousins  —  When  class 

is  ascertained. 

604  Gifts  to  servants. 

605.  Gifts  to  persons  of  a  particu- 
lar name. 


§595.  ^^ Nephews"  and  *^ nieces"  mean  primarily  those 
by  consanguinity. —  The  words  "  nephews  "  and  "  nieces," 
when  used  in  a  will,  in  a  provision  for  the  nephews  and  the 
nieces  of  the  testator  himself,  in  the  absence  of  a  controlling 
context,  have  the  primary  meaning  of  his  own  nepheios  and 
nieces^  i.  e.,  the  children  of  his  brothers  and  sisters,^  including  the 
children  of  his  brothers  and  sisters  of  the  half  blood.  For  when 
a  man  speaks  of  his  brothers  and  sisters,  he  means  those  persons 
who  form  a  class  and  who  stand  in  the  same  relationship  either 
to  one  or  to  both  of  his  parents  that  he  does  himself.^  But  it  is 
possible  that  the  testator  may  have  intended  to  refer  to  his 
nephews  and  nieces  by  marriage  —  that  is  to  say,  he  may  have 


1  Green's  Appeal,  42  Pa.  St.  25,  30; 
Wells  V.  Wells,  L.  R.  18  Eq.  504.  See 
also  9  L.  R.  A.  200;  post,  %  596.  A 
niece  by  affinity  or  a  great-niece  is 
not  permitted  to  take  a  share  in  a 
residuary  gift  "to  nephews  and 
nieces  of  every  description  mentioned 
in  the  will"  though  a  niece  by  mar- 


riage has  been  mentioned  in  the  will 
as  a  niece  simpliciter.  Lewis  v. 
Fisher,  2  Yeates  (Pa.,  1797),  196.  The 
propriety  of  the  decision  may  well 
be  doubted. 

2  Lewis  V.  Fisher,  2  Yeates  (Pa.), 
199;  Shelley  v.  Bryer,  Jac.  207; 
Grieves  v.  Rawley,  10  Hare,  63,  65,  66. 


§  595.]  GIFTS    TO    KELATIOXS    AXD    OTHERS.  T93 

meant  his  wife's  nephews  and  nieces, —  and  to  include  them  in 
a  devise  to  nephews  and  nieces  as  classes,  and  generally  parol 
evidence  is  admissible  to  show  that  he  did  refer  to  such  per- 
sons.^ Thus,  where  the  testator  and  his  wife  cacJi  had  a  nephew 
by  the  name  of  Joseph  Grant,  who  was  living  at  the  date  of 
the  will,  parol  evidence,  consisting  of  the  declarations  of  the 
testator,  and  also  of  evidence  to  prove  his  treatment  of  his 
wife's  nephew  as  his  own  nephew,  was  received  to  show  that 
the  testator  intended  that  person  to  take  under  a  devise  to 
"  my  nephew^''  Joseph  Grant.^  If  at  the  date  of  the  execution 
of  the  will  the  testator  has  no  nepliew  or  niece  of  his  own  liv- 
ing, and,  either  because  he  has  no  brothers  or  sisters  then  liv- 
ing, or  because  those  who  are  living  are  not  likely  to  have 
children  subsequently  born  to  them,  it  is  apparent  that  he  can- 
not mean  his  own  niece  or  nephew,  a  niece  or  nephew  of  his 
wife  may  with  propriety  be  included  under  a  devise  to  "  my 
nephews  or  nieces."  But  it  must  appear  that  he  was  cognizant 
of  the  state  of  facts  as  above  detailed.'  The  same  rule  would 
apply  where  he  has  only  one  niece  by  consanguinity^  and  a  for- 
tiori if  there  be  no  possibility  of  more,  and  where  he  has  in 
the  will  given  all  his  nephews  and  nieces,  in  the  plural,  legacies 
as  such.*  Where  a  testator  gave  property  to  A.  and  A.'s  wife, 
calling  them  his  nephew  and  his  niece,  and  A.  was  his  wife's 
nephew,  and  the  testator  also  gave  legacies  to  his  own  neph- 
ews and  nieces,  and  furthermore  ordered  his  residuary  estate 
to  be  divided  among  his  nephews  and  his  nieces,  by  name  in- 
cluding the  nephew  and  the  niece  to  whom  "  I  have  given  leg- 
acies aforesaid,"  some  of  whom  were  also  nephews  and  nieces  of 
the  testator's  wife,  it  was  held  tliat  the  wife's  nieces  took  under 
the  residuary  bequest,  and  that  A.  and  his  wife  each  took  an 
equal  share  in  the  residue  as  a  nephew  and  a  niece,  though  in 

1  Green's  Appeal,  42  Pa.  St.  2r).  nO;  R.  5  C.  P.  380,  727.    Contra,  In  re 

Merrill  v.  Morton,  43  Law  Times,  7')0;  Root  (Pa.  St.,  1897),  40  Atl.  R.  818. 

SlM-rljiirne  v.  Siw-ho,  14:}  Mass.  43'J.  9  ^Sherratt  v.  Mouutford,  L.  R,  15 

N.  E.  R.  797;  Hogg  v.  Cook,  32  lieav.  E(i.  30.j,  L.  R,  8  Ch.  928;   Hogg  v. 

6U;  Grant  v.  firant,  I^  R  2  P.  &  1).  Clark,  32  Beav.  041. 

8,  18  W.  R  230.     In   a  very  recent  <Adney  v.  (Jrealrex,  38  L.  J.  Ch. 

case  such  evidence  was  reject<!d.    In  414.  17  Week.  R.  (i37.     A  bequest  to 

re  Root's  Estate  (Pa.  St.),  40  Atl.  K.  nt-jihews  and  nieces  does  not  includo 

818.  the  wives  or  widows  «)f  the  nephews. 

■•^Grant  v.  Grant,  18  W.  R.  230,  L.  (ioddurd  v.  Aiik.iv.  MT  Mass.  71  (1888), 

10  N.  K.  R.  72.1. 


794  LAW  OF  WILLS.  [§  50G. 

fact  neither  of  them  Avas  related  to  the  testator  hv  blood. ^  ]]ut 
the  mere  fact  that  the  testator  in  his  will  refers  to  the  ne])hew 
or  the  niece  of  his  wife  as  /u's  own  licjy/ior  or  niece  is  not  al- 
ways conclusive  that  he  intends  liim  or  her  to  take  under  a 
provision  for  his  own  nephews  and  nieces,  made  in  another 
part  of  his  Avill.- 

^  59(».  ^VhoH  a  provision  for  iieplicws  and  nieces  will  in- 
clude ujreat-nepliews  and  great-nieces. —  Whether  a  provision 
ior  nephews  and  nieces  shall  include  great-nephews  and  great- 
nieces  has  been  much  discussed  in  the  cases.  The  answer  to 
this  question  always  depends  upon  the  intention  of  the  testator. 
In  the  absence  of  anything  in  tlie  will  to  show  a  contrary  in- 
tention, it  is  to  be  conclusively  presumed  that  a  gift  to  the 
nephews  and  nieces  of  the  testator  simpliciter  is  not  intended 
to  include  his  great-nephews  and  great-nieces,  i.  e.,  the  children 
of  any  nephew  or  niece  of  the  testator  who  may  have  died  be- 
fore him.'  A  power  to  appoint  among  nieces  cannot  be  exer- 
cised in  favor  of  great-nieces,  i.  e.,  children  of  nieces.*  The  pre- 
sumption is  that  the  testator  means  those  persons  who  are 
members  of  the  class  at  his  death,  though  the  context  may  show 
that  the  testator  meant  that  the  child  of  a  deceased  niece  or 
deceased  nephew  shall  take  as  a  niece  or  a  nephew.*    Thus 

1  In  re  Gue,  61  L.  J.  Ch.  510,  40  W.  27  Beav.  48G;  Brown  v.  Brown,  37  W. 
R  553.  R.  472,  58  L.  J.  Ch.  420. 

2  Smith  T.  Lidiard.  3  K.  &  J.  252.  ^Palkner  v.  Butler,  Amb.  514;  Shel- 
See  also  Wells  v.  Wells.  L.  R.  18  Eq.  ley  v.  Bryer,  Jacob,  207. 

504,  where  the  provision  was  for  "all  5  Cromer  v.  Pinckney,  3  Barb.  Ch. 

my  nephews  and  nieces,"  and  the  466;  Brower  v.  Bowers,  1  Abb.  N.  Y. 

court  held  that  a  niece  by  marriage  Ct.  App.  214.     Testatrix  directed  her 

could  not  take,  though  elsewhere  in  residuary  estate  to  be  equally  divided 

the  will  the  testator  had  given  her  a  between  her  nephews  and  nieces,  not 

leo'acy  by  name,   calling  her  "my  before  named,  "but,  should  any  of 

niece."  them  be  dead  before  me,  I  then  di- 

3  Denny  v.  Kettell,  135  Mass.  138;  rect  that  his  or  her  share  siiall  be 
Lewis  V.  Fisher,  2  Yeates  (Pa.,  1797),  equally  divided  between  liis  or  her 
196;  Van  Gieson  v.  Howard,  7  N.J.  children."  The  children  of  nephews 
Eq.  462;  Buzby  v.  Roberts,  53  N.  J.  and  nieces  dead  at  the  date  of  the 
Eq.  566  (1895),  32  Atl.  R.  9;  In  re  will  were  not  entitled  to  take  under 
Hunt's  Estate,  6  N.  Y.  Supp.  186.  117  the  bequest.  In  re  Musther,  43  Ch. 
N.  Y.  529  (1890),  23  N.  E.  R.  120 :  Marsh  Div.  569.  A  will  which  stated  as  fol- 
V.  Hague,  1  Edw.  (N.  Y.)  174,  181;  lows:  "  I  have  a  number  of  nephews 
Groves  v.  Musther,  43  Ch.  Div.  569,  and  nieces  living,  whose  names  and 
.59  L.  J.  Cli.  296;  Hussey  t.  Berkeley,  residences  lam  unable  to  state  accu- 
2  Eden,  194;  Thompson  v.  Robinson,  rately."  The  testator  then  gave  each 


§  596.]  GIFTS    TO    KELATIOXS    AND    OTHERS.  YOS 

■where  the  testator,  after  dividing  his  property  among  his  ncpli- 
ews  and  nieces  as  classes,  gave  a  legacy  to  a  great-nephew  by 
his  name,  calling  him  his  nephew,  which  was,  as  he  declared, 
to  be  in  addition  to  his  nephew's  share  of  the  residue,  the  court 
held  that  not  only  this  great-nephew,  but  that  all  the  great- 
nephews  and  great-nieces  of  the  testator  alive  at  his  death, 
should  be  entitled  to  a  share  in  the  residue  given  to  nephews 
and  nieces.^  Where  a  testator,  Ttiiowing  that  he  had  no  nieces 
at  the  date  of  the  will,  gives  property  to  his  nieces,  parol  evi- 
dence is  received  to  show  that  he  meant  great-nieces.^  The 
issue  of  the  nephews  and  nieces  who  have  died  hefore  the  testa- 
tor Avill  take  under  a  provision  for  the  nephews  and  nieces,  to 
them  and  to  their  heirs,  where  a  statute  provides  against  lapse 
in  case  of  the  death  of  a  relative  of  the  testator  leaving  issue, 
and  also  provides  that  such  issue  shall  take.'  Where  the  tes- 
tator has  described  his  great-niece  as  "/i«5  niece  A.^  the  davghter 
of  his  nppheio  ^.,"  and  he  then  divides  the  residue  among  his 
nephews  and  nieces,  the  court  held  that,  by  his  definition  of 
the  word  "  niece,"  he  meant  that  all  his  great-nieces  and  his 
great-nephews  should  take  under  the  residuary  clause  as  nieces 
and  nephews.*  On  the  other  hand,  a  provision  which  is  de- 
signed for  the  benefit  of  great-nephews  and  great-nieces  does  not 
inclade  nepheios  and  nieces,  though  the  testator  has  expressly 
stated  that  the  gift  was  made  so  that  each  child  of  a  deceased 
brother  or  deceased  sister  of  the  testator  should  receive  a  bene- 
fit under  it.'*   So  a  bequest  to  the  "  spinster  or  unmarried  nieces 

jK'phew  and  niece  a  legacy,  providing  1040.     Contra,  \\\  re  Fisli,  7  Reports, 

tliat  if  any  should  die  before  him  4:34  (1891).  2  Ch.  83.     Cf.  Stringer  v. 

their  children  were  to  receive  the  Gardner^  27  Beav.  35,  30,  4  De  CJex 

parent's  share.     The  e.xecutors  were  &  J.  4(18,  where  parol  evidence  was 

<lirected  to  communicate  with  "said  refused  to  show  that  an  illegitimate 

nephews  and  nieces."  The  court  held  grand-niece  of  the  wife  of  the  testa- 

tiiat   the  children  of  nephews  and  tor  was  meant. 

nieces  who  were  dead  «•/(<'/<  ///«  xvUl  'Lee  v.  (Jay,  l.")."}  Maf.s.  423,  29  N.  E. 

vtiH  f'.i'f'Ctiti'il  were  n<it  entitleil.     In  R.  032. 

re  Morrison's  Kstate,  139  Pa.  St.  (IHIJO).  ••  .James  v.  Smitli,  14  Sim.  21  I. 

300,  20   .\tl.  R.  10.")7:  M.,  27  W.  N.  C.  iKinihall  v.  Cliapplc,  18  X.  Y.  Supp. 

103:  ant',  <  .-,94.  30,  27  Al.h.  N.  C.  437.     A  luMpicst   to 

'  Wtwls  v.  Uristow,  h.  ii'.  2  K(|.  333;  my  "iifdn-saiil  nieces  and  neithews" 

Sh«'phard  V.  SJH'pliard,  .'»7  Conn.  24,  17  mi'aiis  all  the  iicpliews  and  niec(>sof 

Atl.  I{.  173:   In  re  Hunt's  Rstatc  131  the  testator  when-  none  lia<l  Iteen  be- 

N.  Y.  4.'»fl,  30  N.  K.  R.  48.'}.  fore  mentioned  in  the  will.     {'ami>. 

•i  In  re  Davis  (H.  I.,  1897),  35  All.  i:.  l.eil  v.  LiousUell,  2?  lieav.  325.  329. 


796  LAW  OF  WILLS.  [§§  597,  598. 

of  the  testator"  includes  those  who  were  widows  at  the  death 
of  tlie  testator  as  well  as  those  Avho  had  never  been  married.' 

§  597.  The  presuiiiptioii  that  legitimate  nephews  and 
nieces  are  meant. —  It  will  be  presumed,  until  the  contrary  is 
shown,  that  the  testator,  in  mentioning  nephews  and  nieces  of 
himself  or  of  another  person,  had  in -mind  legitimate  nephews 
and  nieces  only.-  The  illegitimate  children  of  his  brothers  or 
sisters  do  not  take  under  a  devise  to  his  nephews  and  nieces  as 
a  class,  though,  by  a  statute,  such  children  would,  by  reason 
of  the  marriage  of  their  parents,  be  enabled  to  inherit  from 
their  father  and  from  his  collateral  kindred.'  It  may,  how- 
ever, be  shown  by  parol,  as  evidence  that  the  testator  meant 
to  benefit  illegitimate  nephews  and  nieces,  that  he  was  in  the 
habit  of  describing  the  illegitimate  children  of  his  brother  as 
his  nephews  and  nieces.^ 

§  598.  Children  of  a  nephew  or  niece  may  take  the  par- 
ent's share. —  If  the  testator,  in  providing  for  his  nephews 
and  nieces,  directs  that  in  case  of  the  death  of  any  one  or  more 
of  them  the  issue  of  those  deceased  shall  receive  their  parent's 
share  by  substitution,  the  issue  of  nephews  and  nieces  who 
died  hefore  the  %oill  was  made  *  will  take  the  shares  which  their 
parents  would  have  received.^  AVhere  a  testator,  giving  leg- 
acies to  his  nephews  and  nieces,  and  expressly  to  A.  and  B., 
the  children  of  a  deceased  niece,  by  name,  adds  that,  in  case 
any  of  his  nephews  or  nieces  shall  die,  the  issue  of  those  de- 
ceased will  take  their  share,  A.  and  B.  are  to  take  ^^cr  stirpes 
and  not  jper  capita?  Generally,  where  it  appears  to  be  the  in- 
tention of  the  testator  to  give  legacies  to  nephews  and  nieces 
as  to  classes,  they  will  take  j?^?/'  capita  and  \io\jper  stirpes.     The 

1  In  re  Conway's  Estate  (Pa.  St.),  37  ers  A.,  B.  and  C,"  refers  to  those  who 

Atl.  R.  204,  5  Pa,  Dist.  R.  333.  are  nephews  at  the  death  of  the  tes- 

2^47?fe,  §g  570,  591.  tator.    It  does  not  include  a  child 

3  Lyon  V.  Lyon,  88  Me.  (1896),  395,  born  to  A.  after  the  death  of  the  tes- 

400,  34  Atl.  R.  180  (construing  Pub.  tator,  though  A.  had  never  had  chii- 

Law,  1887.  ch.  14).     See  also  Bolton  dren  born  to  him  prior  to  that  tinu'. 

V.  Bolton,  73  Me.  299,  309;  Kent  v.  Worcester  v.  Worcester,  101   IMass, 

Barker,  2  Gray  (Mass.,  1854),  535,  53G;  128,  133. 

Brown  V.  Brown,  37  W.  R  472,  58  L.  5  g  595. 

J.  Ch.  420.  «  Hayward  v.  Barker,  21  N.  E.  R. 

*  In  re  Ashton  (1892),1  Ch.  83,87.  An  143,  113  N.  Y.  366.     C/.  §  342. 

immediate  devise  to  "  my  nephews  "^  Geery  v.  Skelding,  27  Atl.  R.  77, 

and  nieces,  the  children  of  my  broth-  62  Conn.  499. 


§  598.]  GIFTS    TO    KELATIOXS    AND    OTHEKS.  797 

mere  fact  that  the  parents  of  the  nephews  and  nieces  are 
named  is  not  sufficient  to  divide  them  into  families  or  sub- 
ckisses,  nor  does  the  naming  of  the  several  parents  indicate  an. 
intention  that  the  nephews  and  nieces  are  to  take  in  distinct 
classes  jper  stirpes} 

The  statutes  which  have  been  passed  in  many  states,  designed 
to  prevent  a  lapse  in  the  case  of  the  death  of  a  legatee  before 
the  testator,  are  usually  applicable  to  gifts  to  classes.  But  the 
decisions  are  not  harmonious.  In  the  state  of  Maine  the  courts 
liave  held  that,  under  a  bequest  to  nieces  as  a  class  in  equal 
shares,  the  children  of  those  nieces  who  had  died  in  the  life- 
time of  the  testator,  but  after  the  execution  of  the  will,  took 
the  parent's  share,  where  a  statute  expressly  provided  that 
there  should  be  no  lapse  in  the  case  of  the  death  of  any  legatee 
before  the  testator  leaving  descendants  or  relatives.^  An  ex- 
actly contrary  decision  has  been  rendered  by  the  courts  of  the 
state  of  Xew  Hampshire  in  the  case  of  a  class  gift  to  nephews 
and  nieces.'  A  direction  to  divide  "  equally  among  nephews  and 
nieces,  and  the  children  of  said  nephews  and  nieces  who  may 
then  be  living,  so  that  each  of  the  said  nephews,  nieces,  grand- 
nephews  and  grand-nieces  shall  receive  an  equal  share,"  means 
by  the  term  "  vjho  shall  then  he  living,''^  living  at  the  death  of 
the  life  tenant.  A  grand-niece  or  a  grand-nephew  whose  par- 
ent had  died  before  the  death  of  the  life  tenant  would  not 
take,  any  more  than  a  grand-nephew  or  a  grand-niece  who  sur- 
vived him ;  a  statute  providing  for  the  taking  by  children  of 
the  parent's  interest  to  prevent  lapse  having  no  application,  it 
being  evident  that  the  testator  intended  his  nephews  and  nieces 
and  their  children  to  take  as  one  class.*  An  express  provision 
tliat,  in  case  of  the  death  of  a  nephew  or  niece  to  whom  lega- 
cies are  given  in  the  lile-time  of  a  testator  witliout  issue,  his 
or  her  share  shall  go  to  all  nej)he\vs  and  nieces,  means  all 
iir-phews  and  niec('S  wlio  survive  the  testator,  and  not  merely 
those  of  the  particular  subdivision  or  I'amily  in  which  the  de- 
ceased was  included."'     It  has  also  been  held  that,  in  the  case 

iMerriam   v.   Simonds.    121    Mass.  3  ('iimi)l)('ll  v.  Clark,  04  N.  II.  :328, 

lUH;  CiiinpUjll  v.  Clark,  iW  N.  II.  ^•iH,  10  ALl.  \i.  702.     S.'f  nntf,  {5 IWS. 

10  Atl.  It.  702.  *  liiKolow  v.  Clapj)  (.Mass.,  18»«),  43 

-'Mos4..i  V.  Allen,  17  Atl.  li.  «(5,  81  N.  V..  K.  10:{7. 

Me.  208.  5  In  ro    Fulincstook's  Estate  (I'u., 


'Ti'S  LAW   OF   WILLS.  [§  599. 

of  a  devise  in  equal  shares  to  the  nieces  of  the  testatrix  and 
to  the  nieces  of  lier  husband,  a  person  who  is  ri^^litfuUy  in  both 
chisses  of  nieces  cannot  claim  a  share  as  a  member  of  eacli 
chiss.' 

§  500.  (lifts  to  brothers  and  sisters. —  Where  the  testator 
emphn's  the  word  hrothcr  or  .s/.s-A/-  in  his  Avill,  lie  Avili  be  pre- 
sumed prima  facie  to  mean  his  In-otlier  or  sister  of  the  whole 
blood.  But  tliis  presumption  is  not  conclusive,  and  may  Ije  re- 
butted by  inference  from  the  context  showing  that  he  meant 
a  half-brother  or  a  half-sister.'^  The  rules  of  construction  which 
are  applicable  to  gifts  to  children,  heirs  and  next  of  kin  as 
purchasers  are  applicable  to  devises  to  brothers,  cousins,  etc. 
Thus,  a  gift  to  A.  for  life,  remainder  to  his  brothers,  will  vest 
in  the  brothers  of  A.  who  are  living  at  the  death  of  the  testa- 
tor, subject  to  open  and  let  in  other  brothers  who  are  born 
durinfj;  the  life  of  A.'  It  has  been  held,  in  construing:  a  residu- 
ary  clause  by  which  property  is  divided  among  the  brothers  and 
the  .sisters  of  the  testator,  that  he  means  prinuiril}'"  those  who  arc 
alive  at  his  death.  Though  under  a  statute  abolisliing  the 
common-law  rule  of  lapse,  the  issue  of  a  brother  or  sister  who 
died  during  the  life-time  of  the  testator  and  after  the  execution 
of  the  will  may  take  their  parent's  share,  it  is  the  rule  that  the 
issue  of  brothers  and  sisters  of  the  testator  who  were  deceased 
at  the  date  of  the  execution  of  the  will  cannot  take  by  represen- 
tation with  brothers  and  sisters  who  were  alive  at  that  date.^ 
This  was  so  held  where  the  devise  was  to  "  brothers  and  sisters 
for  life,  and  remainder  to  their  children." '"  So,  also,  the  chil- 
dren, or  other  issue  of  a  deceased  brother,  cannot  be  permitted 
to  take  their  parent's  share  where  the  testamentary  provision 
is  expressly  for  the  brothers  of  the  testator,  or  of  A.,  who  may 
be  surviving  at  the  death  of  a  tenant  for  life.^ 

1896).  23  Atl.  R  573;  10  Pa.  Co.  Ct.  R.        *  John's  Estate,  11  Phila.  144;  Fiil- 
199,  affirmed.  ler  v.  Martin,  96  Ky.  500,  29  S.  W.  R. 

1  Campbell  v.  Clark,  64  X.  H.  328,    315. 

10  Atl.  R.  702.  5  Walsh  v.  Blayney,  L.  R.  21    Jr. 

2  Wood  V.  Mitchell,  92  N.  Y.  379,  61  140;  Cowling  v.  Thompson,  L.  R.  11 
How.  Pr.  (N.  Y.)  48;  Leake  v.  Robin-  Eq.  366;  Barneby  v.  Van  Tassell,  L. 
son,  2  Mer.  363.  Compare  Luce  v.  R  11  Eq.  363.  Contra,  Win^Held  v. 
Harris,  79  Pa.  St.  432.  AVingfield,  L.  R  9  Ch.  Div.  658,  666. 

SDevisme  v.  Mello,  1  B.  C.  C.  537;  <*  Mullarkey  v.  Sullivan,  136  N.  Y. 
Doe  d.  Steart  v.  Sheffield,  13  East,  227, 32  N.  E.  R  762.  But  in  Huntress 
526.  V.  Place,  137  Mass.  409,  a  devise  to 


§  600.]  GIFTS    TO    EELATIOisS    AXD    OTHERS.  T9{> 

It  is  to  be  presumed,  in  the  absence  of  indications  to  the  con- 
trary, that  the  testator,  in  mentioning  brothers  and  si:ters, 
means  those  who  are  leizitimatelv  brothers  and  sisters.  But 
the  fact  that  a  person  claiming  as  a  brother  of  the  testator  is 
the  illegitimate  son  of  the  mother  of  the  testator,  if  the  fad  of 
illtgitimaey  was  nnhnoicii  to  the  testator,  does  not  disqualify  him 
from  taking  a  devise  to  the  brother  of  the  testator,  if  it  is  other- 
wise apparent  that  the  testator  intended  him  to  do  so.'  In 
conclusion  it  may  be  remarked  that  a  statute  providing  that 
if  a  relative  of  the  testator  ^  to  whom  a  devise  or  legacy  is  given 
shall  die  before  the  testator,  leaving  issue,  the  issue  shall  take 
the  estate  of  the  ancestor,  applies  to  a  testamentary  provision 
for  the  brothers  and  sisters  of  the  testator,  and  to  the  brothers 
and  sisters  of  the  wife  of  the  testator.^ 

§600.  (lifts  to  daugliter  or  daughters  —  Numbers  incor- 
rectly stated  by  the  testator. —  Tlie  word  '"daughter"  signi- 
fies prima  facie  a  legitimate  female  descendant  in  the  first 
degree  from  the  projxjsitus,  unless  it  clearly  appears  from  the 
context  and  from  the  family  relations  of  the  testator  that  he 
meant  an  illegitimate  child.  Hence,  where  a  testator  has  no 
legitimate  daughters,  but  his  wife  had  three  illegitimate  daugh- 
ters who  were  born  before  his  marriage  to  her,  and  who  were 
suljsequently  acknowledged  by  him  as  his  own  daughters,  it 
was  held  that  they  were  entitled  under  a  bequest  to  "  my  daugh- 
ters." *  So,  too,  where  a  testator  specifically  bequeaths  property 
to  each  of  his  illegitimate  children,  designating  them  as  "my 
son-"  and  "  my  daughter,"  and  their  mother  as  "  my  wife,"  they 
will  also  take  under  a  residuary  clause  directing  the  residue  of 
the  estate  to  be  divided  between  "  my  children."  ^  A  gift  to  the 
sons  and  the  daughters  of  the  testator  as  such  may,  in  case  the 
common-law  rule  of  lapse  has  been  abolished  by  statute,  in- 
clude the  descendants  of  such  as  are  dead  at  the  making  of  the 

"  my  brothers  and  their  lieirs  "  was  tate,  .%  W.  X.  C.  71,  1  Pa.  Dist.  Ct.  R. 

fonstru<'d   to    include  the    heirs  of  V.i. 

br<jthers  who  were  deceased  at  the  *  In  re  Herbert,  20  L.  J.  Ch.  870.  1 

<late  of  the  execution  of  the  will.  Jo.  &  H.  12:5;  Dorin  v.  Dorin,  7  II.  L. 

•  Dane  v.  Walker.  lO'J  Ma.s8.  171),  180.  Cases,  ndM.  r)73.  57.1;  Uikcr  v.  Ilorderu, 

2yl«/r,  i;^  ;j:{7,  •.y.\H.  I^  \L  1  ("h.  Div.  (Ml. 

^StrouK  V.  Smith.  81  ^licli.  507,  18  •''  Dickisun  v.  Dickison,  30  111.  App. 

N.  W.  k.  W.i.     Compare  Cullin's  Ks-  503. 


800  LAW    OF    WILLS.  [§  GOO. 

will.'  Anrl  it  will  certainly  incliulc  the  descendants  of  daugh- 
ters who  died  in  the  lii'e-time  of  the  testator  and  after  the 
execution  of  the  will,-  though  this  is  not  the  general  rule  inde- 
pendently of  statute,  unless  it  appears  to  be  the  intention  of  the 
testator. 

So,  also,  where  the  will  devised  a  life  estate  to  the  sister  of 
the  testator,  and  at  her  death  the  i-cmiiiiidci'  to  her  dangiitci's 
who  may  be  unmarried,  but,  if  there  were  no  unmarried  daugh- 
ters at  her  death,  tiien  to  be  equally  divided  among  all  the 
daughters  of  the  life  tenant,  and  there  were  three  married 
daughters  but  no  unmarried  daughters  at  the  death  of  the  life 
tenant,  the  court  held  that  the  remainder  was  to  be  divided 
equally  among  the  three,  to  the  exclusion  of  the  heirs  of  a  mar- 
ried daughter  who  had  died  before  her  mother.'  it  would  re- 
quire a  very  strong  context  to  include  the  surviving  husband 
of  a  deceased  daughter,  under  a  provision  for  the  sons  and 
daughters  of  the  testator  for  their  respective  lives,  and  on  their 
death  to  their  children,  and  if  any  of  the  testator's  children 
shall  die,  leaving  a  widow,  then  to  her  during  widowhood.  The 
presumption  is  against  it;  for  the  intention  of  the  testator  is  not 
so  much  to  provide  for  those  who  have  married  his  children  as 
for  his  own  sons  and  daughters  and  their  issue,'*  The  general 
rules  of  construction  which  are  applicable  to  testamentary  pro- 
visions for  children  are  also  applied  to  devises  to  sons  and 
daughters,  A  bequest  to  "  my  daughters,"  or  to  the  "  daugh- 
ters of  A,,"  includes  daughters  by  several  marriages.  And 
while  a  gift  to  the  daughters  of  the  widow  of  the  testator,  fol- 
lowing a  life  estate  given  her,  would  doubtless  include  her  daugh- 
ters by  a  husband  whom  she  may  marry  after  the  death  of  the 
testator,  a  gift  to  "  our  daughters,"  under  such  circumstances, 
would  take  in  only  the  daughters  born  to  her  of  her  marriage 
with  the  testator, 

A  mistake  in  a  devise  to  the  daughters  of  a  person,  by  which 
the  number  of  the  daughters  is  understated,  will  be  corrected 
by  the  court  where  it  is  apparent  from  the  Avill  that  the  testa- 

iJamisonv.Hay,4G  Mo.  54G;  Smith's  10  S.  W.  R.  96.     Compare  Sliaw  v. 

Will,  2  Des.  (S.  C.)  123.  Eckley,  1G9  Mass.  Ill),  47  N.  E.  R.  GOO, 

2  Bancroft  v.  Fitch,  1G4  Mass.  401,  *  Wellington  v.  Drummer  (N.  H., 
402.  1898),  40  Atl.  R.  392. 

3  Robertson  v.  Garrett,  72  Tex.  372, 


§  GOl.]  GIFTS   TO   EELATIOXS    AND    OTHERS.  801 

tor  intended  to  benefit  all  the  daughters.  Thus,  where  a  gift 
Avas  to  A.'s  daughters,  if  loth  or  either  of  them  should  survive 
B.,^  or  where  an  executor  was  directed  to  divide  a  fund  between 
the  two  daughters  of  A.,  and  ileithe?'  should  die,  then  to  the  sur- 
vivor, and  if  hath  should  die,  then  over,-  and  it  happened  in  each 
case  that  there  were  three  daughters,  the  property  or  fund  was 
divided  equally  among  them.  And  where  the  testator  gave 
£'50  each  to  the  "  two  sons  and  daughters  of  A.,"  who  had  in 
fact  one  son  and  five  daughters  at  the  date  of  the  will,  the  court 
decreed  that  £50  should  be  paid  to  each  of  A.'s  children.* 

§  601.  Gifts  to  a  husband  or  wife  when  claimed  by  person 
not  a  lawful  husband  or  wife. —  The  word  "husband"  or 
*•  wife,"  when  it  is  employed  in  a  will  to  describe  the  object  of 
a  bequest,  is  presumed  to  mean  a  lawful  husband  or  wife.  This 
presumption  is  never  conchisive  and  may  be  rebutted  by  slight 
evidence  of  an  intention  to  the  contrary.  These  words  are 
usually  employed  by  the  testator  to  designate  some  particular 
person  who  is  either  his  or  her  wife  or  husband,  or  who  is  the 
•wife  or  husband  of  another  person.  We  will  first  consider  the 
case  where  the  word  is  used  to  designate  the  husband  or 
the  wife  of  the  testator.  "Where  a  testator's  marital  relations 
are  illegitimate,  either  he  is  aware  of  this  fact  or  he  is  not.  If 
he  is  cognizant  of  the  fact  that  the  person  whom  he  describes 
as  his  wife  is  not  lawfully  such,  and  the  devise  is  claimed  by  a 
woman  who  has  no  lawful  right  to  the  appellation,  it  is  for  the 
court  to  ascertain  from  all  the  circumstances  if  the  testator 
meant,  by  using  the  word  "  wife,"  to  designate  a  person  who 
was  not  a  wife  in  law.  In  such  case  the  testator,  though  he 
Jciiew  tlie  illegitimacy  of  his  marital  relations,  has  a  right  to  de- 
mand that  his  intentions  shall  be  carried  out,  and  the  court  will 
not  declare  the  legacy  invalid.  The  right  of  the  legatee  will 
not  be  affected  because  of  tlic  immorality  of  her  relations  with 
the  testator.* 

>  Scott  V.  Fenoulhout,  1  Cox  Ch.  Mass.  85,  87,  44  N.  E.  R.  3 10.     In  this 

R  79.  case  the  tostator,  having  desortoil  liis 

•'Stebhing  V.  Walkoy,  1  Cox  Ch.  11.  lawful  wife,  inanioil   M.  iind  lived 

2.*A  2  Bro.  C.  C.  80.  with  her  thirty-live  years,  holding 

'Harrison  v.  HarriKon,  1  Russ.  &  her  out  to  tho  world  a.s  his  wifo.     In 

My.  72.     See  also  ante,  §  50.1.  his  will  ho  referred  to  a  daughter  of 

*\n  Gof>ds  of  Howe,  3:{  W.  R  48,  M.,  by  a  former   husband,  as  "my 

48  LP.  74;j;  Pasteuo  v.  Bonini,  100  bteiKiaughter,"  and  gavo  "itrovisiou 
01 


802  LAW    OF    WILLS.  [§  COl. 

A  devise  to  a  woman  who  is  described  as  the  wife  of  the  tes- 
tator maybe  void  if  she  liad  a  previous  husband  living,  and  this 
fact  was  known  to  /ler,  thougli  not  to  the  testator,  she  having 
deceived  him  in  that  respect,  w'lierc  tlie  property  is  given  to  her 
because  she  is  his  wife.^  But  where  a  testator  gave  property 
to  "his  loife,'*''  who  was  not  legally  a  wife,  as  when  she  married 
the  testator  she  had  a  husband  living,  whose  whereabouts  were 
unknown  to  her  and  from  whom  she  had  not  heard  in  nineteen 
years,  it  was  held  that,  having  acted  in  perfect  good  faith  in 
contracting  the  marriage,  having  reasonable  grounds  for  sup- 
posing that  her  husband  was  dead,  she  was  entitled  to  receive 
the  legacy  as  though  she  were  the  lawful  wife  of  the  testator.- 
So  also  a  provision  that  a  bequest  to  "  my  said  wife  A.  shall 
not  be  considered  to  be  in  lieu  of  dower,"  but  that  she  shall  bo 
entitled  under  the  law  as  " my  widow"  gives  A.,  though  she 
was  not  in  fact  the  testator's  lawful  wife  and  hence  cannot  be 
his  widoAV,  the  same  interest  in  his  real  estate  as  she  would 
have  had  if  she  were.^  These  rules  and  principles  do  not  apply 
where  a  person  claiming  a  devise  to  the  hushand  or  wife  of  the 
testator  or  testatrix  has  deliberately  deceived  him  or  her  as  to  his 
or  her  right  to  enter  into  a  marriage;  for,  where  a  legacy  is 
given  to  a  person  because  he  is  presumed  to  possess  a  particu- 
lar character  which  he  has  falsely  assumed,  and  this  particular 
character  is  the  sole  motive  of  the  testator's  bounty,  the  legacy 

and  consumable  stores,"  and  the  resi-  See  also  Pratt  v.  Matliew,  23  Beav.334, 
due  in  tmst  for  the  benefit  of  "  my  338,  340.  The  evidence  which  is  pro- 
wife  "  for  her  life,  with  remainder  to  duced  to  show  that  a  testator  in- 
two  persons  named  who  were  the  tended  to  provide  for  a  woman  with 
children  of  his  lawful  wife,  describ-  whom  A.  had  maintained  illicit  rela- 
ing  them  "as  my  only  children  by  tions,  and  by  wliom  he  had  cliildren 
my  first  wife."  Held,  that  by  "my  (A.  having  a  wife  living  at  tiie  date 
wife  "  the  testator  meant  M.,  though  of  the  will),  under  a  gift  "  to  the  wife 
the  will  stated  that  the  provisions  and  children  of  A.,"  must  be  clear, 
for  her  are  made  in  lieu  of  "  her  law-  convincing  and  cogent.  Miller  v. 
ful  rights."  Hardy  v.  Smith,  136  Miller,  30  N.  Y.  Supp.  116,  79  Hun, 
Mass.  328,  331.  In  the  last  case  the  197;  Giles  v.  Giles,  1  Kee,  085,  093. 
testatrix,  having  a  husband  living  at  And  cf.  Lepine  v.  Bean,  L.  R.  10  Eq. 
the  date  of  the  will,  left  a  will  de-  100. 

scribing  herself  as  "  the  wife  of  P.,"  i  Wilkinson  v.  Joughin,  L.  R.  3  Eq. 

who  was  not  her  husband,  but  with  319,  322. 

whom  she  had  been  unlawfully  co-  2in  ^q  Petts  (1859),  27  Beav.  576, 

habiting.     She  also  devised  property  578. 

to  "7H?/  husband,"  which  P.  was  per-  ^Dicke  v.  Wagner,  95  Wis.  200,  70 

mitted  to  receive  as  her  "husband."  N.  W.  R  159. 


§  602.]  GIFTS    TO    RELATIOXS    AND    OTHERS.  803 

is  void,  as  the  law  will  not  permit  a  fraud  to  be  perpetrated. 
Accordingly,  where  a  married  woman  executed  a  power  of  ap- 
pointment in  favor  of  a  man  who  was  by  her  supposed  to  be 
her  husband,  but  who  was  not  lawfully  such,  she  having  been 
deceived  by  his  statement  that  he  was  an  unmarried  man,  made 
at  the  time  of  the  marriage  to  him,  though  he  had  another  wife 
living,  the  execution  of  the  power  was  declared  void.^  Again, 
where  a  man  devised  money  to  a  woman  to  whom  at  the  date 
of  the  will  he  was  engaged  to  be  married,  designating  her  as 
"  my  wife,"  and  died  before  the  marriage  was  consummated, 
she  was  entitled  to  receive  her  legacy,  Avhere  it  conclusively 
appeared  that  the  gift  was  not  upon  a  condition  that  she  should 
marry  him.- 

§  60'2.  From  what  date  the  will  speaks  as  respects  a  devise 
to  a  Inisband  or  wife. — -Under  the  rule  that  where  a  testator 
refers  to  an  existing  state  of  things,  or  speaks  of  an  existing 
relationship  between  persons,  the  will  speaks  as  of  its  date  and 
not  as  of  his  death,'  a  devise  to  A.,  and  "at  or  after  his 
death  to  his  icife^''  *  or  "  to  the  widow  of  my  son  -4.,"  the  son 
being  then  alive,'  is  presumed  to  refer  to  the  woman  who  is 
the  wife  of  A.  at  the  date  of  the  execution  of  the  will.^  This 
is  always  the  rule  in  the  construction  of  a  gift  to  the  wife  of 
A.,  where  that  person  has  a  wife  who  is  alive  at  the  date  of  tlie 
execution  of  the  will,  though  at  the  death  of  the  testator  tho 
husband  is  dead  and  she  has  become  the  Avife  of  another  dur- 
ing the  life  of  the  testator.     If  the  person  to  whose  wife  a  dc- 

1  Kennell  v.  Abbott,  4  Ves.  802,804,  vivinp;  her,"  he  should  receive  a  life 

~-ij9.  income,  the  testator  meant  only  tlioso 

-  Schloss  V.  Stiebel.  G  Sim.  1,  5.    See  persons  wlio  at  tiie  date^  of  the  exe- 

alsfj  Rishton  v.  Cobb,  5  Myl.  &  Cr.  cution    of  the  will  were    the  hus- 

\\T);  Doe  d.  Gaius  v.  Rouse,  5  Coui.  bands  of  his  dauj^hters.    Johnson  v. 

liench,  422.  Webber,  33  Atl.  \l,  50(5,  65  Conn.  501. 

*  Ante.  ^  15.  The  phrase,  "  leaving  a  husband  sur- 

*  Van  Syckel  V.  Van  Syckel,  51  N.  viving,"  refers  to  the  husband  wl»o 
J.  Eq.  104,  20  Atl.  R.  15G;  Anschutz  i.s  living  at  the  date  of  tiie  will, 
v.  Miller,  bl  Pa.  St.  212.  Humphrey  v.AVinsliip.28  Hun  (N.  Y.), 

»Ii«-«-rs  v.  Narramore,  CI  Coim.  l.J,  :}:!.     And  cf.  10  MoJ.  371;  8  Vin.  Al>. 

22  Atl.  R  \m\.  30i),  tit.  Dev.,  pi.  2;  I'h.wden,  344.  A.; 

*  Where  the  t<»stator  gave  land  to  Nablock  v.  Garrett,  1  Rush.  &  My. 
his  marrii'd  daughters,  and  in  a  sub-  (J'iW,  (i30  (a  devise  "to  ?»//  wife'^); 
M-quont  clauM!  provided  that  if  either  Hryan's   Trusts,  2   Sim.  (N.   S.)  103; 

■  f    tho     daughters    (naming    them)     Franks  v.  Booker,  27  Bcav.  035. 
ohould  die  "  leaving  u  husband  sur- 


SOi  LAW    OF    WILLS.  [§  G02. 

vise  is  given  has  no  wife  at  the  date  of  tlic  execution  of  the 
will,  the  legacy  will  go  to  her  Avho  may  be  his  wife  at  the  death 
of  the  testator,  in  the  absence  of  a  clearly  expressed  intention 
to  the  contrary.  If  the  person  whoso  wife  is  referred  to  has 
no  wife  either  at  the  date  of  the  will  or  at  the  death  of  the 
testator,  a  devise  to  his  wife  may  go  to  tiiat  Avoman  who  shall, 
after  the  death  of  the  testator,  become  his  wife.  A  devise  "to 
my  son  and  his  wife,"  and,  on  the  death  of  the  "  widow  of  my 
son,"  then  over,  means  the  son's  wife  at  the  date  of  the  execu- 
tion of  the  will,  though  they  were  divorced  in  the  life-time  of 
the  testator  and  the  son  married  another.^  But  where  the  will 
directs  that,  if  A.'s  wife  shall  survive  him,  she  shall  be  paid  an 
annuity  during  her  widowhood,  and  A.  and  his  wife  are  di- 
vorced, the  annuity  to  the  wife  fails;  for,  as  the  latter  can  never 
he  Ah  luidow,  she  cannot  take  the  annuity.^  For  the  same 
reason  a  provision  for  A.,  if  she  shall  become  a  widow,  is  void 
where  A.  at  the  testator's  death  is  not  a  lawful  wife,  which,  it 
may  be  assumed,  she  must  then  be  in  order  to  fulfill  the  con- 
dition mentioned,''  The  same  rule  is  applied  to  a  gift  of  an 
annuity  during  widow^hood  to  the  wife  of  the  testator,  when 
his  marriage  was  annulled,  after  execution,  upon  the  grounds 
of  the  impotency  of  the  testator.*  But  it  seems  that  a  life  in- 
terest given  to  "  any  husband  xoiih  lohoni  A.  mirjht  intermarry, 
ifhs  should  survive  ^.,"  may  be  claimed  by  one  who  was  her 
husband  at  the  date  of  execution,  though  he  was  divorced  from 
A.  before  the  death  of  the  testator.^  A  legacy  given  abso- 
lutely to  a  woman  whom  the  testator  describes  as  the  widow 
of  A.  is  not  void  merely  because  the  woman,  though  she  is  a 
widow  at  the  date  of  the  execution  of  the  will,  subsequently 

1  Davis  V.  Kerr,  38  N.  Y.  S.  387,  3  BuUmore  v.  Wynter,  id.  Disapproved 

App.  Div.  322.  iu  Hitcliins  v.  Morrieson,  L.  R.  40  Ch. 

2Peppiii  V.  Bickford,  3  Ves.  570;  D.  30.     A  womau  who  lias  procured 

Radford  v.  "Willis,  L.  R.  7  Ch.  7;  Frank  a  divorce  from  her  husband  is  "  sole 

V.  Frank,  3  Maule  &  Sel.  25, 8  Taunton,  and  unmarried  "  in  the  sense  of  these 

468;  In  re  Lyne's  Trusts,  L.  R.  8  Eq.  words  as  they  are  used  in  a  direction 

65;  Longwortii  v.  Bellamy,  40  L.  J.  to  pay  "to  A  if  she  be  then  sole  and 

Ch.  513.  unmarried."     Lessingham's   Trusts, 

s  In  re  Lowe,  Gl  L.  J.  Ch.  415,  416.  L.  R.  24  Ch.  D.  703,  49  L.  T.  235,  33 

*ln  re  Boddington,  L,  R.  22  Ch.  D.  W.  R.  116.     See  §§  506-508  for  cases 

:597,  52  L.  J.  Ch.  239,  48  L.  T.  110,  31  illustrating   estates    during  widow- 

W.  R.  449,  W.  N.  1884,  12.  hood. 

5  In  re  Bullmore,  52  L,  J,  Ch,  D,  456; 


§  603.]  GIFTS    TO    KELATIOXS    AND   OTHERS.  805- 

marries,  and  at  the  death  of  the  testator  she  is  the  wife  or  even 
the  widow  of  B.  The  incorrect  portion  of  the  description  will 
be  rejected  if  she  can  be  identified  from  what  remains.  But 
a  legac}^  to  the  widow  of  A.,  "  so  long  as  she  shall  remain  a 
widow,"  or  his  widow,  is  forfeited  if  she  marries  in  the  life- 
time of  the  testator,  and  if  she  is  the  wife  of  B.  at  the  death 
of  the  testator. 

§603.  Gifts  to  cousins  —  When  class  is  ascertained. —  A 
gift  to  the  cousins  of  the  testator,  in  the  absence  of  a  controlling 
context,  includes  only  his  first  cousins,  i.  e.,  the  children  of  his 
uncle  or  his  aunt ;  ^  and  a  gift  to  fit'st  cousins  expressly  means 
those  who  are  such  at  the  date  of  the  will,-  excluding  the  issue 
of  any  first  cousins  who  were  dead  at  that  time,  whether  the 
testator  knew  of  their  death  or  not."  It  has  been  held  that  first 
cousins  once  removed  may  share  in  a  provision  for  the  second 
cousins  of  the  testator  if  there  are  no  second  cousins  at  the  date 
of  the  will.*  The  testator  may,  by  the  j^cculiarity  of  his  lan- 
guage, put  a  particular  definition  on  the  word  "cousins."  So, 
where  he  gave  property  to  "  my  cousins  living  at  my  death,  and 
the  children  of  my  cousins  then  dead,"  but  expressly  excluded 
from  taking  under  his  will  the  only  persons  who  were  or  could, 
in  the  ordinary  course  of  events,  have  been  his  cousins,  the  chil- 
dren of  those  excluded  persons  could  not  take  under  the  pro- 
vision for  children  of  deceased  cousins.'*  So,  too,  a  gift  to  the 
first  and  second  cousins  of  the  testator  as  classes  will  comprise 
all  persons  who  are  within  the  sixth  degree  of  relationshi)>  to 
him,  as  are  second  cousins,  and  the  gift  will  comprehend  groat- 
nieces  and  first  cousins  once  and  twic.e  removed.^ 

'  Stephenson  V.  Abingdon,  31  Boav.  ins  at  the  date  of  the  will  witli  tlie 

oOo;  Caldecott  V.  Harrison,  U  .Simons,  issue  of  first  cousins  dying  hvtu-ccn 

407.     See  also  In  re  Taylor.  L.  li.  \ii  tiie  execution  of  the  will  and  tlie 

Cli.  D.  2.",,  TjO  L.  J.  Ch.  17:J.  deatli  of  the  testator.     I  lowland  v. 

^Rowland  v,  Shide,  153  Mass.  41.j,  Slade,  155  Mass.  415,  410,  2'J  N.  E.  R. 

410.  c;ji. 

3  White  V.  Mass.  Institution,  50  N.  ^Slade  v.  Fooks.  OSini.  380.  Coutra, 

H  R.  512  (Mjisa,  1897);  Sandursrjn  v.  Corporation   of  Bridgonortli  v.  Col- 

Bayley,  4  My.  &  Cr.  50;  Sto<ldart  v.  lins,  15  Sim.  511. 

Nelsfin.  C  I).  .M.  &  d.  68.     A  statute  *  Stephenson  v.  Abingdon,  31  Beav. 

providing  against  lajjso  in  tlie  case  305. 

of  (I  l<!ga<:y  to  relatives  of  the  tes-  "iMaj'ott  v.  Mayott,  2  Bro.  C.  C.  125; 

t;itor   (\in'H   not  vary  this    rule,  and  Silcox    v.    Bell.    1    Sim.    «S:   St.    301; 

thoso  only  tuko  who  were  first  cous-  Ciiargo  v.  (Joodyer,  3  Kuhh.  140. 


80G  LAW   OF   "WILLS.  [§  OO-i. 

§  604.  Gifts  to  scrv.ants. —  A  gift  by  the  testator  to  his  serv- 
ants Avlio  arc  living  with  him  at  his  death  goes  only  to  his 
servants  who  are  ri'gularly,  permanently  and  continuously  em- 
ployed bv  him.'  A  woman  whom  the  testator  employed  from 
time  to  time  to  do  wasliing  and  house-cleaning  in  his  family, 
and  to  assist  the  regular  servants  employed  by  him,  and  who 
also  took  charge  of  the  country  residence  of  the  testator  while 
he  was  absent,  is  not  a  servant,  nor  is  she  capable  of  taking 
under  a  bequest  to  such  "  servants  as  shall  he  in.  my  emjAoy  "  at 
my  death.-  A  devise  to  "household  servants"  means  only  do- 
mestic servants  who  are  living  in  the  house  with  the  master. 
It  does  not  include  gardeners,  coachmen  or  grooms  who  sleep 
outside  of  the  house.*  Generally,  whether  a  devise  to  "serv- 
ants in  my  service''''  shall  include  outdoor  servants  depends  alto- 
gether on  the  circumstances  of  the  testator^  at  the  date  of  the 
will  or  at  his  death.  Thus,  under  a  devise  to  servants  "  livhuj 
with  the  testator  at  his  death^^  a  farm  bailiff  who  then  lived,  rent 
free,  on  the  farm,  and  who  was  paid  a  yearly  salary,  was  in- 
cluded, for  the  court  would  not  construe  "  living  with  the  tes- 
tator "  as  an  actual  living  in  his  house.''  I3ut  on  the  other  hand, 
a  steward  who,  though  employed  by  the  testator,  was  at  liberty 
to  serve  another  master  also,  will  not  take  a  bequest  to  servants 
who  are  ^'■living  lo'ith  the  testator^'' ^  though  he  may  take  under 
a  gift  to  "  all  servants  in  my  serviced  ^  Where  a  provision  is 
expressly  for  servants  in  the  testator''s  service  or  employ,  it  will 
be  presumed  that  he  intends  such  only  as  are  in  his  service  at 
his  deaths  in  the  absence  of  anything  to  the  contrary.^  And 
where  the  provision  is  expressly  for  servants  who  are  in  the 
testator's  service  at  his  death,  the  mode  of  dismissal  during  his 
life-time  seems  to  be  immaterial.''     Under  such  a  provision  a 

1  Chilcot  V.  Bromley,  13  Ves.  114.        ^Thrupp  v.  Collett,  26  Beav.  147. 
If  a  servant  is  in  liis  service  at  his        SBielling  v.  Ellice,  9  Jur.  936. 
death,  it  is  not  material  that  he  has        *>  Townshend  v.  Windliam,  2  Vern. 
quitted  the  house  of  the  testator  in  546. 

the  performance  of  his  duty.  Herbert  "'  Armstrong  v.  Clavering,  27  Beav. 

V.  Reid,  16  Ves.  481.  226. 

2  Metcalf  V.  Sweeney,  17  R.  I.  213,  8  Marcus  v.  Marcus.  56  L.  J.  Ch.  830, 
21  Atl.  R.  364.  So,  also,  of  a  coach-  57  L.  T,  399.  This  condition  will  be 
man  hired  with  a  team.  Chilcot  v.  strictly  construed.  In  re  Benyon,  53 
Bromley,  12  Ves.  114.  L.  J.  Ch.  1165. 

3  Ogle  V.  Morgan,  1  De  Gex,  M.  &  »  Darlow  v.  Edwards,  1  H.  &  C.  547. 
G.  359;  In  re  Drax,  Savile  v.  Yeat- 

man,  57  L.  T.  475. 


§  605.]  GIFTS    TO    RELATIONS    AND    OTHERS.  807 

servant  who  had  been  dismissed  by  an  imauthorizod  person, 
where  the  testator,  being  a  lunatic,  had  to  give  up  house-keep- 
ing, Avill  lose  her  legacy,^ 

^  605.  Gifts  to  persons  of  a  particular  name. —  A  gift  to 
a  person  of  the  name  of  A.,  whether  the  name  be  that  of  the 
testator  or  of  some  one  else,  is  a  gift  upon  a  condition  that  the 
person  is  of  that  name.-  Such  a  condition  as  this,  being  a  con- 
dition precedent,  means  that  the  person's  surname  must  cor- 
respond precisely  with  the  name  designated  by  the  will.  This 
is  the  primary  meaning  of  the  phrase  "  of  the  name  of  A.," 
but  these  words  have  a  secondary  meaning.  To  be  of  the  name 
of  A.  may  signify  in  its  secondary'-  sense  to  be  of  the  family, 
or  blood,  or  stock  of  A.  Thus,  a  woman  whose  maiden  sur- 
name is  A.  is  of  the  name  of  A.  in  the  latter  sense,  though, 
upon  her  marriage,  her  surname  has  ipso  facto  become  B. 
"Where  a  testator  adds  the  qualification  of  name  to  a  gift  to 
his  next  of  kin,  or  to  his  relations,  requiring  that  they  should 
be  of  his  own  name,  it  is  obvious  that  he  has  restricted  the 
meaning  of  the  term  "next  of  kin"  or  "relations,"  and  that 
the  word  "name"  is  nsed  in  its  primary  sense  as  signifying 
those  persons  whose  cognomen  or  surname  is  identical  with  that 
of  the  testator.^  In  a  case  which  was  decided  by  Lord  llard- 
wicke,  the  secondary  meaning  was  applied  to  the  term.  In  that 
case  the  testatrix  gave  her  estate  to  "  her  nearest  relations  of 
the  name  of  Pyots,"  in  fee.  AVhen  she  died,  three  persons  act- 
ually possessed  the  surname  who  were  equally  related  to  the 
testatrix,  and  there  was  another  equally  related  to  her  and 
married,  and  who,  at  the  death  of  the  testatrix,  was  not  of  the 
name  of  Pyot.  The  heir  at  law  of  the  testatrix  was  her  nephew 
of  the  name  of  P^'ot,  though  he  was  not  related  as  nearly  as 
the  other  claimants.  He  contended  that  either  the  devise  was 
void  altogether,  or  that  he,  being  the  heir  at  law  of  the  name 
Pyot,  had  been  designated  by  the  testatrix  as  her  "  nearest  re- 
lations" of  that  name.      The  court,  in  holding  his  chiim  un- 

'  In    n;   Hartley's  Trust,  W.  N.,  4  ily  of  the  testiitor.     Bootli  v.  Dean.  1 

May.    IHIH,    lOJ;     In     re    Sliarland  Myl.  &  K.  ."idU;  Jilackwtll  v.  rciiiiaMt, 

(Kemp  V.  Uosey.  IHUf!),  1  Cli.  517.     A  0  ilare,  511. 

tfift  of  one  ycar'a  wmjiH  ^^ocs  to  serv-  ^  j;  5HJ. 

fintH  hired  !>}/ tJid  year  iiiilif,  iiui\  not  3,j,,i,s()n's    Caso,     Cro.     Kliz.    57(U 

to  thoHO  who  were  hircil  l)y  the  week,  Lei^h   v.   l.ei;,'h,   15   V'cs.  \)2;  Uoii  v. 

an'l  wlio  <]«»  n'>f  re^-iMc  uiih  lln'  fam-  Smith,  Cro.  Eliz.  5!J2. 


808  LAW    OF    WILLS.  [§  G05. 

founded,  determined  that  the  expression  "  the  Pyots  "  described 
a  particular  stock  or  family,  but  not  the  whole  family,  for  the 
words  ''nearest  relations"  limited  it,  and,  the  property  dis- 
posed of  being  personal  property,  "  relations  "  could  not  mean 
lieir.  The  brothers  and  sisters  of  the  testatrix,  married  and 
unmarried,  should  take  equally  among  them,  the  change  of 
name  by  marriage  not  being  material.^  This  case  was  fol- 
lowed in  a  later  case,^  where  the  provision  was  that  the  estates 
of  the  testator  should  be  kept  in  the  Westcrman's  name,  and 
in  another  case'  where  the  provision  was  that,  in  the  event  of 
the  life  tenant  dying  without  issue,  the  property  should  be  di- 
vided amongst  all  the  next  of  kin  of  the  surname  of  Crum]), 
and  a  lady  of  that  family  was  permitted  to  take,  though  not  of 
the  surname  of  Crump,  But  a  woman  who  was  originally  of 
the  name  of  A.,  but  has  assumed  her  husband's  surname  upon 
her  marriage,  has  no  claim  under  a  devise  to  persons  of  the 
name  of  A.,  if  that  term  is  to  be  taken  in  its  primary  sense; 
and  the  same  rule  would  seem  to  apply  where  the  person  who 
claims  a  legacy  has  changed  his  name  by  legislative  enactment. 
The  whole  matter  depends  upon  the  intention  of  the  testator. 
On  principle,  whether  a  person  who  has  his  name  altered, 
either  by  judicial  proceedings  or  by  legislative  enactment,  to 
correspond  with  the  name  designated,  would  be  entitled  to  a 
legacy,  may  well  be  doubted.  Where  a  devise  was  to  the 
nearest  himlred,  heing  male  and  of  the  name  and  Tjlood  of  the 
testator,  it  was  held  that  a  man  of  the  family  and  blood  of  the 
testator,  but  not  of  his  name,  had  no  title,  though  he  had  ob- 
tained a  license  from  the  king  permitting  him  and  his  issue  to 
assume  the  name  in  question.'* 

1  Pyot  V.  Pj-ot,  1  Ves.  335.  »  Carpenter  v.  Bott,  15  Sim.  GOG. 

2  Mortimer  v.  Hartley,  G  Excb-  47.        *  Leigh  v.  Leigh,  15  Ves.  93. 


CHAPTER  XXX. 


GIFTS  TO  THE  HEIRS  AND  THE  NEXT  OF  KIN  AS  PURCHASERS. 


606.  "Words  of  limitation  and  words 

of  purchase  distinguished. 

607.  Definition  of  the  word  "heirs" 

wlien  used  as  a  word  of 
purchase. 

608.  The  inadmissibility  of  parol 

evidence  to  vary  the  mean- 
ing of  the  word  "  heirs." 

609.  An  heir  takes  as  a  purchaser 

land  devised  to  him  by  his 
ancestor. 

610.  The  period  at  which  class  is 

to  be  ascertained  wliere  the 
gift  is  vested. 

611.  Remainder  to  heirs  after  a  life 

estate  in  one  who  is  an  heir 
at  the  death  of  the  testator. 
012.  Gifts  to  heirs  of  living  per- 
son—  Heirs  apparent  or  pre- 
sumptive—  Recognition  of 
ancestor  as  living. 

613.  Devises  to  heirs  peculiarly  de- 

scribed —  Heirs  of  a  partic- 
ular nama 

614.  The  construction  of  a  devise 

to  the  "lieir"'  in  the  singular. 
CM  The    meaning    of    the    term 

"right  heirs." 
CIG.  Circumstances   under   which 

the  word  "  heirs  "  is  etjuiva- 

lent  to  the  word  "children." 

617.  Heirs  may  mean  children  in 

a  devise  in  d'o,  and,  if  tlie 
devisee  die  "witliout  lieirs," 
then  over. 

618.  When  the  word  "heirs"' means 

devis4'<'s  or  lfg:it«*<'.s. 
GIO.  The  won!  "lieirs  "  in  gifts  of 
I>erwjii!il     pro[>erty     iiiciins 
next  of  kin. 


§  620.  Gifts  of  personalty  to  the  heir 
or  heirs  asj^ersona  clcsignata. 

621.  Personal    and   real    property 

blended  in  a  gift  to  the 
heirs. 

622.  Whether  a  husband  or  wife 

is  included  in  the  word 
"heirs." 

623.  "Whether  heirs,  when  purchas- 

ers, take  per  stirjyes  or  per 
capita. 

624.  "When  a  distribution  per  stir- 

pes is  favored. 

625.  Statutory  modification  of  the 

laws  of  descent. 

626.  "Next  of  kin"  simpUciter  in- 

cludes only  nearest  blood 
relations. 

627.  Construction    of    the    words 

"next  of  kin"  when  the 
statute  of  distribution  is  re- 
ferred to. 

628.  Next  of  kin   specifically  de- 

scribed as  of  a  particular 
name  or  sex  —  Gifts  to 
wortliy  next  of  kin. 

629.  When  the  next  of  kin  are  to 

be  ascertained  as  a  class  iu 
case  of  immedijvte  gifts. 

630.  Wlien  ascertainable  as  a  class 

if  the  vesting  is  postponed. 

631.  Ascertainment    of   the    class 

when  a  life  estate  is  given 

to  one  of  the  next  of  kin. 
633.  Immediate  gifts  to  tlio  next 

of  kin  of  other  persons  tlian 

tlio  testator, 
633.  rrcsumption   that  testator 

iiH'ans   legitimate    next  of 

kin. 


810  I.AW   OF   WILLS.  [§  606. 

§  GOG.  Words  of  limitation  and  words  of  pnrcliase  distin- 
i^uisluMl. —  In  a  gift  to  the  "heir"  or  "  lieirs,"  cither  of  the 
testator  or  of  some  other  person,  the  word  "heir"  may  be  a 
word  of  limitation  or  a  word  of  purchase.  If  the  heir  takes  as 
a  purchaser  under  a  will,  he  takes  an  interest  in  his  own  right; 
that  is  to  say,  he  takes  not  through  or  by  descent  from  his  an- 
cestor. The  heir  takes  under  the  will,  without  any  reference 
to  any  previous  existing  estate  in  his  ancestor.  Thus,  in  the 
case  of  a  limitation  to  A.  for  life,  and  after  his  death  to  his 
then  living  heir  or  heirs,  the  heir  takes  a  separate  and  distinct 
estate  under  the  will  as  a  purchaser,  and  not  by  descent  from 
his  ancestor.^  AYhere  these  words  are  words  of  purchase,  the 
ancestor  has  no  power  of  alienation  which  will  affect  the  inter- 
est of  the  heirs;  nor  can  he  charge  or  incumber  any  estate 
•which  they  are  to  take  under  the  will. 

On  the  other  hand,  if  the  w^ord  "heirs"  in  such  a  disposition 
is  to  be  construed  as  a  word  of  limitation  and  not  as  a  word  of 
purchase,  the  heirs  take  by  descent  from  their  ancestor,  and 
their  right  and  interest  may  be  defeated  or  incumbered  by  his 
conveyance  of  the  fee-simple.  In  the  one  case  they  are  orig- 
inal and  primary  beneficiaries  under  the  will,  taking  an  interest 
which,  whether  contingent  or  vested,  is  alienable  by  them.  In 
the  other  case  their  interest  is  mediate  and  secondary,  and 
neither  vested  nor  contingent;  being  in  the  latter  case  a  mere 
expectation  of  inheriting  from  their  ancestor,  which  is  wholly 
subjected  to  be  defeated  by  his  conveyance  of  the  fee-simple.- 

1  But  see  §  Go5  ct  seq.  as  give  the  estate  limited  by  the  term 

2  The  explanation  of  Mr.  Preston  in  'to  the  heirs'  originally  in  their 
1  Preston's  Estates,  3G,  is  so  lucid  and  oicn  right  and  as  the  persons  answer- 
satisfactory  that  it  is  Inserted  at  ing  that  description,  and  not  through 
length.  "The  expression  'words  of  the  medium  of,  or  by  descent  from, 
limitation'  is  always  used  in  contra-  any  ancestor;  so  that  these  heirs  are 
distinction  to  the  expression  'words  the  purchasers  under  the  appellation 
of  purchase.'  By  the  former  expres-  of  heirs,  and  are  to  take  without  any 
sion  it  must  be  understood  that  the  reference  to  a  previous  right  in  their 
interest  limited  by  these  words  is  ancestor,  in  whom  the  estate  to  pass 
not  originally  given  to  the  heirs,  but  by  the  limitation  to  the  heirs  cannot 
to  their  ancestor,  either  mediately,  vest  in  any  possible  event.  A  con- 
immediately  or  eventually,  so  as  to  sequence  is  tiiat  the  ix)wer  of  aliena- 
create  in  him  an  estate  or  interest  of  tion  commences  in  the  heirs  and  not 
inheritance  descendible  to  his  heirs  in  the  ancestor;  and  tlie  heirs,  un- 
of  the  given  description.  By  the  lat-  less  their  interest  shall  be  defeated 
ter  expression  is  meant  such  words  under  the  rules  applicable  to  con- 


§  GOT.] 


GIFTS    TO    HEIRS    AND    NEXT    OF    KIN. 


811 


§607.  Definition  of  the  uonl  "heirs"  when  used  as  a 
■word  of  purchase. —  Gifts  of  property,  both  real  and  personal, 
to  the  heir  or  heirs,  either  of  the  testator  or  of  some  other  per- 
son, he  being  either  living  or  dead,  are  of  frequent  occurrence 
in  wills,  particularly  in  those  which  are  written  without  pro- 
fessional assistance.  In  the  majority  of  cases  of  this  descri^v 
tion,  the  word  "heir"  or  "heirs"  is  used  in  the  most  Tasue 
and  general  sense.  The  difficulty  of  construing  the  word  is 
very  frequently  increased  by  the  fact  that  the  testator,  in  pen- 
ning his  Avill,  has  added  to  the  word  other  terms  or  phrases, 
with  the  intention  of  mal'ing  his  meaning  clearer  or  more  ap- 
jxrrcnt,  but  which  only  tend  to  obscure  it.  Under  the  general 
rule  that  technical  words  are  to  be  taken  in  their  ordinary 
sense,  in  the  absence  of  language  showing  that  they  are  used 
in  any  other,  the  word  "  heirs  "  will  be  taken  to  mean  the  per- 
son or  persons  upon  whom,  according  to  law,  real  estate  de- 
scends in  case  the  person  who  is  mentioned  as  the  ancestor  had 
died  intestate.  Where  the  word  "heir"  or  "heirs"  is  used  as 
a  word  of  purchase,  and  not  as  a  word  of  limitation  (which 
distinction  has  been  explained  in  the  last  section),'  its  meaning 
is  liable  to  be  controlled,  enlarged  or  limited  by  the  words  of 
the  context.^ 


tingent  remainders,  ■will  not  be  liable 
to  the  charges  or  bound  by  the  con- 
veyance of  tlie  persons  who  in  point 
of  fact  and  in  reference  to  other 
l)roperty  may  be  their  ancestors.'' 

1  Ante,  i  600. 

-Leake  v.  Watson,  GO  Conn.  498, 
riOT;  Gold  V.  Judson,  21  Conn.  016; 
liand  V.  Butler,  48  Conn.  293.  298; 
Jacksfjn  v.  Alsop,  34  Atl.  R  1101,  07 
Conn.  2.J9;  Ruggles  v.  Rmdall.  38  Atl. 
R.  887,  70  Conn.  44;  liawson  v.  Kaw- 
i^>Xi,  .Oi  111.  02:  RicJiards  v.  Miller,  02 
111.  417;  Blan<l  v.  Bland.  103  III.  12; 
Kellf-tt  V.  She|.ard  (III.),  28  N.  E.  li. 
7'>1:  PeacfKjk  v.  A I  bin,  39  Ind.  2.'); 
Davis  V.  Taul.  0  Dana,  ."il,  52:  P'urenes 
V.  Severtsen  (Iowa,  \hmh^,  71  N.  W.  li. 
19«;  Ixjrd  V.  liourne,  03  Ma  308  ("  .stat- 
utory heirs");  SynuneH  v.  Moulton, 
120  MuHs.  313,  3U;  Hal.y  v.  Moston, 
108  Ma.H.s.  577;  Miiiot  v.  llarrJH,  132 


Jlass.  528.  529;  Fa  bens  v.  Fabens,  141 
Mass.  395,  400;  Lincoln  v.  Aldricli, 
21  N.  E.  R.  671,  149  Mass.  368;  Proc- 
tor T.  Clark,  154  Mass.  45,  48:  Lincoln 
V.  Perry,  149  Mass.  (1889),  368,  373; 
Lawrence  v.  Crane,  158  Mass.  (1893), 
392,  33  N.  E.  R  605;  Smith  v.  Har- 
rington, 4  Allen  (Mass.),  566;  Clark 
V.  Cordis,  4  Allen  (86  Mass.),  466,480; 
Loring  v.  Thorndike,  5  Allen  (87 
Mass.),  257,  209;  Lombard  v.  Boyden, 
5  Allen,  249;  Richardson  v.  Martin, 
55  N.  II.  45;  Wood  v.  Keyes,  8  Paige 
(X.  Y..  IHIO),  305:  Campbell  v.  Haw- 
don,  18  N.  Y.  412.  reversing  19  Barb. 
494;  Cushman  v.  llorton,  59  N.  Y. 
149,  151;  In  ro  Allen.  151  N.  Y.  243. 
45  N.  E.  R  554;  Tillman  v.  Davis,  95 
N.  Y.  17,  25-30:  Piatt  v.  Mickle,  32 
N.  K  R  1070.  137  N.  Y.  100;  Johnson 
V.  Brasinglon.  sc,  Hun.  100.  109;  Rog- 
ers v.  Birckhouse,  5  Jones'  Eq.  (58 


812  LAW  OF  WILLS.  [§§  COS,  009. 

§608.  Tlie  iiiadiiiissihility  ofpsirol  evidence  to  vary  the 
meaninp:  of  the  word  "heirs." — To  justify  the  court  in  con- 
struing the  word  "  heirs  "  in  any  other  than  its  strict,  ordinary 
and  toclinical  sense,  the  intention  of  tlie  testator  to  that  effect 
must  chMrly  nj^iioar.^  The  intention  t(^  depart  from  the  tech- 
nical meaning  of  the  word  must  be  a]iparent  from  the  context 
of  the  will,  for  parol  evidence  is  never  received  to  vary  the 
meaning  of  the  word."  Thus,  it  cannot  be  shown  by  parol  evi- 
dence that  the  testator  wished  to  include  the  husband  of  a  dev- 
isee in  a  devise  to  the  heirs  of  said  devisee,^  and  the  strict 
meaning  of  the  word  "heirs"  will  l)o  adhered  to,  though  the 
testator  or  other  person  whose  heirs  are  mentioned  had  in  fact 
but  one  heir."*  But  parol  evidence  of  the  circumstances  of  the 
family  of  the  person  wdio  is  the  ancestor  may  ahvays  be  re- 
ceived where  it  is  a  question  of  identifying  those  who  claim 
the  testamentary  provision  for  heirs  as  a  class. 

§  609.  An  heir  takes  as  a  purchaser  land  devised  to  liim 
hy  his  ancestor. —  In  the  absence  of  a  statute  repealing  the 
rule,  it  is  a  rule  that,  where  an  estate  in  land  which  is  devised 
by  a  man  to  his  heir  or  heirs  is  precisely  the  same  in  its  char- 
acter and  amount  as  the  heir  or  heirs  would  have  taken  by 
descent,  the  devise,  as  such,  is  void.  The  heir  or  heirs  will 
then  take  that  estate  by  descent,  and  not  as  purchasers  under 
the  will  of  the  ancestor.^    This  ancient  and  w^ell  settled  rule 

N.  C,  I860),  304;  Porter's  Appeal,  45  -Love  v.  Buchanan,  40  Miss.  748; 
Pa.  St.  201:  Eby's  Appeal,  50  Pa.  St.  Aspden's  Estate,  2  Wall.  Jr.  C.  C.  3G8; 
311;  Clark  v.  Scott,  67  Pa,  St.  446;  O'llara  on  Cons.  ofWills,  297. 
Surges  V.  Tiiompson,  13  R.  I.  712;  3  Lincoln  v.  Aldricli,  21  N,  E.  R 
Evans  v.  Ilarllee,  9  Rich.  (S.  C.)  501;  671.  149  Mass.  368. 
Roclielle  v.  Tonikins,  1  Strobh.  (S.  C,  *  Rand  v.  Butler,  48  Conn.  293.  29S. 
1846),  Eq.  114;  Seabrook  v.  Seabrook.  5o  Black.,  p.  242;  Co.  Lit.  22  B.; 
McMuUen's  (S.  C,  1841)  Eq.  206;  Ayd-  4  Kent,  507;  1  Powell,  414,  427;  Raw- 
lett  V.  Swope  (Tenn.),  17  S.  W.  R.  208;  son  v.  Rawson,  52  111.  62;  Cribben  v. 
Aspden's  Estate,  2  Wall.  Jr.  (C.  C.)  Cribben,  136  111.  609.  613;  Ellis  v. 
368;  Boraan  v.  Boman.  49  Fed.  R.  329,  Page,  7  Cush.  (Jlass.)  161,  163:  How- 
1  C.  C.  A.  274;  Gittings  v.  McDer-  ard  v.  Howard,  19  Conn.  313,  318; 
niott,  2  My.  &  K  69;  De  Bouvoir  v.  Whitney  v.  Whitney,  14  Mass.  88.90; 
De  Bouvoir,  3  H.  L.  Cas.  524;  In  re  Parsons  v.  Winslow,  6  Mass.  (1810), 
Rootes.  1  Dr.  &  Sm.  228. 12  Lawy.  Rep.  178;  Sedgwick  v.  ]\[inot,  6  Allen  (88 
Ann.  721,  13  Lawy.  Rep.  Ann.  46;  4  Mass.,  1863),  171, 173;  Seabrook  v.  Sea- 
Kent,  222.  brook,  10  Rich.  (S.  C.)  Eq.  495,  508; 
1  Gold  V.  Judson,  21  Conn.  (1852),  Williman  v.  Holmes,  4  Rich.  Eq.  (S. 
616;  Rand  v.  Butler  48  Conn.  (1881),  C,  1850),  475;  In  re  Root,  81  Wis.  263. 
293,  298.  266;  Barnitz  v.  Casey,  7  Cranch,  456; 


§  009.]  GIFTS    TO    DEIRS    AND    NEXT    OF    KIN.  813 

of  the  common  law  is  applied,  in  the  absence  of  a  statute,  to 
all  devises  by  the  testator  to  his  heir  or  heirs,  whether  he  shall 
designate  such  person  or  persons  by  his  or  their  names,  or 
whether  the  provision  is  for  them  simply  as  his  "heirs,"  "his 
right  heirs,"  or  "  legal  heirs ;  "  and  also  where  he  in  his  will 
orders  his  lands  to  be  distributed  as  though  he  had  died  in- 
testate.^ 

The  rule  is  based  upon  the  theory  that  a  title  by  descent  is 
of  more  advantage  to  the  heir  than  is  a  title  by  purchase ;  for 
by  the  former  title  the  right  of  entry  is  cut  off  from  any  one 
who  may  have  claimed  it,  and  an  heir  who  takes  by  descent 
may  claim  the  benefit  of  a  warrant  v  contained  in  a  conveyance 
to  his  ancestor.  It  is  immaterial  that  the  testator  shall,  after 
creating  one  or  more  intermediate  estates,  give  to  his  heirs  a 
so-called  remainder  in  fee  after  a  life  estate  in  a  stranger,  or 
on  the  termination  of  an  estate  tail,  or  an  executory  devise  on 
a  fee  defeasible  on  a  definite  failure  of  the  issue  of  the  prior 
taker,  or  an  estate  after  any  future  interest  or  executory  de- 
vise.^ Kor  is  it  material  that,  after  an  estate  in  fee  given  by 
will  to  his  heir,  the  testator  provides  that  it  shall  go  over  to 
another  upon  the  happening  of  a  contingency,  as,  for  example, 
on  the  death  of  the  heir  during  his  minority.' 

The  fact  that  the  property  which  is  devised  to  the  heir  of 
the  testator  is  charged  with  the  payment  of  the  debts  of  the 
testator,  or  with  legacies*  or  annuities,'^  does  not  affect  the  ap- 
plication of  the  rule  that  the  heir  shall  take  by  descent.^  But 
in  order  that  it  shall  apply,  it  must  be  shown  that  the  testator 
has  given  to  his  heir,  by  the  devise,  an  estate  in  his  land  of  pre- 
cisely the  same  tenure,  quality  and  quantity  as  the  heir  would 
have  taken  by  descent  had  not  the  will  been  made.^  In  l^ng- 
land^  and  in  some  states  the  rule  of  the  common  huv,  that  an 

Smith  V.  TrigKS,  1  Str.  487;  Scott  v.  <  Clarke  v.   Smith,  Lutch.   792,    1 

Scott,  Amb.  (1759),  asa  Salk.  241,  Cro.  Eiiz.  S:V.l. 

'  2  Preston  on  Estates,  17.  *  Emerson  v.  Inchbird,  1  Ld.  R;iy. 

2  Ellis  V.  PaKe,  7  Ciwh.  (Ma.s.s.,  1851).  728. 

101,  Hy.i;    Manbrid^e  v.  Plummer,  2  "Bioderiiian  v.  Seymour,  3   I^-av. 

My.   &   K-   93;   Prebton   v.    Holmes,  308,  371;  Ciiaplin  v.  Leroux,  5  ]\I.  & 

Styles,  148.  Sel.  1J3. 

3I)oo  V.  Timins,  1  Bar.  &  Aid.  530,  Mollis  v.  Pa^'O,  7  Cush.  (01   Mass., 

5J9;    llindo   v.   Lyon,   Dyer,    124,   2  1851).  101.   104;  Parsons  v.  Winslow, 

Leon.  11,  3  id,  70.  0  Mass.  109,  177. 

»3&4\Vm.  IV,  c.  100,  ij  3. 


8U 


LAW    OF    WILLS. 


[§  CIO. 


heir  takes  land  devised  as  by  descent,  is  modified  by  statute. 
Thus,  in  the  state  of  New  York,  a  direction  that  the  real  and 
pei*sonal  property  which  is  devised  shall,  at  the  termination  of 
11  life  estate  in  it,  be  divided  according*  to  the  statutes  govern- 
ing the  descent  of  such  property,  gives  the  heirs  of  the  testator 
vested  remainders  in  fee.^ 

§  ()10.  The  period  at  which  class  is  to  he  ascertained 
Tvlicre  the  gift  is  vested. —  In  the  absence  of  a  clear  indication 
of  a  contrary  intention,  it  is  the  rule  that  the  words  "  heir," 
"  next  of  kin,"  or  "  relations,"  in  a  devise  by  the  testator  to  his 
"  heirs,"  "  next  of  kin,"  etc.,  mean  those  who  are  such  at  his 
death.  This  is  usually  the  rule  if  the  devise  to  the  heirs  is 
vested,  though  an  intermediate  estate  is  given  which  postpones 
the  possession.  Their  interest  vests  at  once,  though  the  testa- 
tor has  given  a  life  estate  to  another.'-  ]f  a  gift  by  the  testator 
is  in  remainder  to  the  heirs  of  another,  the  testator  will  be  pre- 
sumed to  mean  those  who  are  the  heirs  of  that  person  at  the 
time  of  his  death,  and  the  remainder  is  therefore  contingent 
durinir  the  life  of  the  ancestor.' 


1  Hersee  v.  Simpson,  48  N.  E.  R.  890, 
154  N.  Y.  49G,  4G  N.  Y.  S.  7o5;  Lawtou 
V.  Corlies,  127  N.  Y.  100,  107. 

2  Bunting  v.  Speek,  41  Kan.'424,  21 
Pac.  R.  288  (1889);  Abbott  v.  Brad- 
street,  3  Allen  (Mass.),  587,589;  Pink- 
liam  V.  Blair,  57  N.  J.  Eq.  (1897),  226, 
232,  1  Am.  Prob.  R  114,  120,  123;  Mc- 
Daniel  v.  Allen,  64  Miss.  417.  1  S.  R. 
356;  Smith  v.  Harrington,  4  Allen, 
566;  Miuot  v.  Harris,  132  Mass.  528, 
529:  Childs  v.  Russell,  11  Met.  16; 
Knight  V.  Knight.  3  Jones  (N.  C), 
167,  169;  Aspden's  Estate,  2  Wall.  Jr. 
C.  C.  368;  In  re  Tucker's  Will,  6-3  Vt. 
104,  21  Atl.  R.  272;  Doe  v.  Lawson,  3 
East,  278;  Bird  v.  Luckie,  8  Hare, 
301;  Philps  v.  Evans,  4  De  Gex  &  S. 
188;  Doe  d.  Pilkington  v.  Spratt,  5 
Har.  &  Ad.  731 ;  In  re  Ford,  72  L.  T. 
5;  Johnson  v.  Webber,  33  Atl.  R.  .506, 
65  Conn.  501;  Rand  v.  Butler,  48 
Conn.  293,  299  (for  life  to  A.,  re- 
mainder to  lawful  heirs  of  testator); 
Ingraham  v.  Ingraham,  48  N.  E.  R. 
561  (111.);  Childs   v.  Russell,  11  Met. 


(52  Mass.,  1846),  16,  23;  Brown  v.  Law- 
rence, 3  Cush.  (57  Mass.,  1849),  396, 
397;  Buzby's  Appeal,  61  Pa.  St.  114; 
Wood's  Appeal,  18  Pa.  St.  478;  Rein- 
ders  V.  Koppelman,  68  Md.  482;  Her- 
see V.  Simpson,  154  N.  Y.  496.  48  N.  E. 
R.  890;  Walker  v.  Donohue,  38  Pa.  St. 
439. 

*Rogei*s  V.  Ogbourne,  37  Ala.  178; 
Healy  v.  Healy,  70  Conn.  467,  39  Atl. 
R.  97;  Vinson  v.  Vinson,  33  Ga.  454; 
Read  v.  Fogg,  60  Me.  479;  Preston  v. 
Brant,  96  Mo.  552,  10  S.  W.  R.  78; 
Ryan  v.  Monaghan,  99  Tenn.  338,  42 
S.  W.  R.  144;  Reinders  v.  Koppel- 
man, 68  Mo.  482;  Persons  v.  Snooks, 
40  Barb.  (N.  Y.)  144;  Knight  v. 
Weatherwax,  7  Paige  (N.  Y.),  182. 
Thus,  a  gift  to  A.  and  her  husband 
for  their  joint  lives,  but  at  her  death 
to  be  divided  amongst  her  heirs, 
mean.s,  where  she  survives  her  hus- 
band, her  heirs  at  tliat  time.  Rich- 
ardson v.  Wheatland,  7  Met.  (Mass.) 
169.  The  rules  of  the  text  regulating 
the  construction  of  the  word  "  heirs  " 


§611.] 


GIFTS    TO    HEIRS    AND    NEXT    OF    KIN. 


815 


§  611.  Keiiiainder  to  heirs  after  a  life  estate  in  one  who 
is  an  heir  at  the  death  of  testator. —  Under  some  circum- 
stances, where  a  life  estate  precedes  a  gift  in  a  will  to  the  heirs 
or  next  of  kin  of  the  testator,  it  may  appear  that  the  testator 
intended  to  include  among  his  heirs  such  persons  only  as  would 
answer  to  that  description  at  the  termination  of  the  life  estate. 
This  question  frequently  arises  Avhere  a  testator  gives  a  life 
estate  to  A.,  who^  at  the  death  of  the  former^  is  his  sole  heir  or 
nearest  of  kin,  and  a  remainder  in  fee  to  his  heirs  or  next  of 
kin,  to  vest  in  possession  at  the  termination  of  the  life  estate. 
It  would  seem  that  the  facts  that  the  first  taker  was  sole  heir 
of  the  testator  at  the  time  of  the  testator'' s  death,  and  that  he  gave 
a  remainder  to  his  heirs,  would  indicate  that  he  meant  such 
persons  to  take  as  heirs  who  would  have  been  his  heirs  had  he 
(the  testator)  survived  the  life  tenant.  This  has  been  held  in 
man}'  cases.^  Thus,  where  a  testator  gave  his  daughter  a  life 
estate  with  a  remainder  at  his  death,  "  as  though  I  died  intes- 

are  based  upon  the  general  principle  sion.  If  A.  is  alive  at  the  death  of 
that  the  law  favors  an  early  vesting,  the  testator,  a  devise  to  his  heir  or 
If,  from  the  context,  it  is  plainly  ap-  heirs  is  an  executory  devise  and  will 
parent  that  tlie  testator  meant  to  vest  in  those  who  may  be  liis  heirs 
give  an  immediate  vested  gift  to  his  at  his  death  in  the  future.  But  where 
own  heirs,  tlie  estate  given  will  vest  a  life  estate  is  given  to  anotlier  and 
in  those  persons  who,  at  the  death  of  remainder  to  A.'s  heirs,  it  is  a  contin- 
the  testator,  form  the  class  heirs,  in  gent  remainder  which  vests  in  the 
spite  of  the  fact  that  their  posses-  heirs  of  A.  upon  A.'s  death  during 
sion  may  have  been  postponed.  The  the  prior  life  estate.  A  devise  of  an 
remainder  to  the  heir  or  heirs,  hav-  estate  "for  the  use,  benefit  and  be- 
mg  vested,  is  descendiljle  and  de-  hoof  of  my  daughter  .  .  .  during 
visable,  and  cannot  be  defeated  by  her  natural  life,  and  for  tlie  use  of 
tlie  fact  tliat  tlie  person  or  persons  the  heirs  of  my  said  daugliter  after 
who  are  the  heir  or  heirs  of  the  tes-  the  death  of  my  said  daugiitcr,"  cre- 
tator  at  the  termination  of  tlio  life    ates  a  contingent  remainder  in  the 

heirs  of  tlie  daugliter,  which  does 
not  become  vested  until  her  death; 
it  appearing  that  the  will  was  drawn 
by  one  wlio  clearly  understood  the 
meaning  of  the  terms  employed,  iind 
there  being  nothing  to  indicate  that 
tiio  won!  "heirs"  was  not  used  in  its 
technical   sense.     Wallace  v.  I\Iiii(ir, 

m  Viu  r).-.o,  10  s.  i<:.  li.  viw. 

'.Jones  v.  Colbeck,  8  V«'S,  Jr.  :H: 
Lfuig  v.  Hlaclv-all,  \i  Ve.s.  18(5;  Hutlcr 
V.  Hiishw(-ll.  :{  .My.  it  K.  'iWi.  i'f. 
IJiideii  V.  Hewlett,  'i,  My.  &  K.  W. 


estate  are  not  the  same  as  those  who 
occufiy  that  relation  to  him  at  his 
d«5ith.  Wliere  tiie  devise  is  to  tiio 
heir  of  another,  as  to  the  heir  of  A., 
that  person  shall  take  it  who  is  the 
heir  of  A.  at  A.'s  deatlu  If  A.  shall 
die  during  the  lifetime  of  the  testa- 
tor, the  [MTsfjn  who  is  then  his  heir 
and  wlio  aisfj  survives  the  t<!stator 
Liki-H  on  th<5  de.ith  of  the  testator  a 
|>reH'-iit  vested  int'Test,  which  al.so 
vf«ts  in  [K>ss(r>iHion  unless  the;  t^'stator 
ha«  expressly  iKjst{MJiied  the  jK^sse*- 


S16 


LAW    OF    WILLS. 


[§  Gil. 


tate,"  it  was  held  that  he  meant  as  though  he  died  intestate 
after  the  (huighter,  and  consequently  that  liis  lieirs  at  that  time 
wouUl  take.  His  daughter,  the  life  tenant,  who  was  his  sole 
heir  at  his  death,  was  therefore  excluded.'  But  where  the  tes- 
tator devised  land  in  trust  for  his  son  D.  "  for  and  during  the 
term  of  his  natural  life,"  and  on  the  death  of  the  son  the  tes- 
tator gave  the  said  property  to  "wy  {the  testato)'''s)  own  right 
/leif's"  the  court  held  that  at  once,  at  the  death  of  the  testator, 
the  remainder  vested  in  the  then  living  heirs  of  the  testator. 
The  son  and  life  tenant  was  the  sole  heir  of  the  testator  at  his 
death,  and  when  he  subsequently  died  intestate  and  childless, 
the  property  went  to  his  heirs  rather  than  to  the  heirs  of  the 
testator  living  at  the  death  of  the  son.- 

But  the  cases  are  by  no  means  harmonious  on  this  point,  and 
several  hold  that  the  fact  that  the  previous  estate  is  given  ex- 
pressly to  the  heir,  to  \vhom  is  also  given  the  remainder,  does 
not  prevent  the  operation  of  the  general  rule  that  the  word 
will  be  construed  as  meaning  those '  who  are  heirs  at  the  death 
of  the  testator.*    "Where  the  testator,  in  the  year  1830,  gave 


See  also  Donohue  v.  McNichol,  61  Pa. 
St.  73;  Heartl  v.  Read,  169  Mass.  216, 
47  N.  E.  R.  778;  and  cf.  contra,  §  631. 

1  Welch  V.  Brimmer,  47  N.  E.  R. 
699, 169  :Mass.  204;  Pierce  v.  Hubbard, 
152  Piu  St.  18,  31  W.  N.  C.  185;  Heard 
V.  Read,  47  N.  E.  R.  778,  169  Mass. 
216;  Forrest  v.  Porch,  100  Tenn.  391, 
45  S.  W.  R.  676. 

2  In  re  Kenyon,  17  R.  I.  149,  20  AtL 
R  294. 

3  Tlie  principle  of  construction 
which  was  applied  in  Jones  v.  Col- 
beck,  8  Ves.  Jr.  38,  where  the  devise 
was  to  a  daughter  of  tlie  testator  for 
life,  and  upon  tlie  decease  of  the  said 
daughter  the  fund  was  to  be  dis- 
tributed "among  the  relatives"  of 
the  testator,  may  be  applied  to  a  gift 
to  the  heir  or  heirs  of  the  testator 
after  a  life  estate  in  one  who  is  his 
sole  heir  at  his  death.  The  court  in 
that  case  excluded  the  personal  rep- 
resentative of  the  daughter  and  as- 
certained the  class  "relatives"  as  it 
existed  at  her  death-     In  another 


case  (Briden  v.  Hewlett,  2  My.  &  K 
90),  where  the  testator,  giving  a  life 
estate  to  his  mother  with  a  power  of 
appointment  of  the  fee  by  will,  and  a 
devise  in  default  of  appointment  "  to 
such  person  or  persons  as  would  be 
entitled  to  the  same  by  the  statute  of 
distribution,"  and  the  mother  was 
the  sole  next  of  kin  at  the  death  of 
the  testator,  the  court  observed:  "  It 
is  impossible  to  contend  that  this 
testator  meant  to  give  the  property 
absolutely  to  his  motliei*.  because  he 
gives  it  to  her  for  life  with  a  power 
of  appointment.  In  case  of  her  death 
without  a  will,  the  testator  gives  his 
property  to  such  person  or  persons 
who  would  be  entitled  to  it  by  virtue 
of  the  statute  of  distribution.  En- 
titled at  what  time?  The  word 
'  would '  imports  that  the  testator  in- 
tended his  next  of  kin  at  the  death 
of  the  mother." 

^  In  the  English  case  of  Wrightson 
V.  Macauly,  14  Mee.  &  "Wei.  214,  a 
life  estate  was  by  the  testator  given 


§  612.]  GIFTS   TO    HEIKS    AND    NEXT    OF    KIX.  817 

land  to  his  daughter  and  her  husband,  but,  if  the  daughter  should 
die  without  issue  surviving,  the  land  to  go  to  the  heirs  of  the 
testator,  and  the  daughter  died  in  1884  without  having  had 
and  without  leaving  issue,  the  court  held  that  the  testator  meant 
those  who  were  his  licirs  at  the  time  of  his  death.  Hence,  as 
the  daughter  was  sole  heir  of  the  testator,  she  took  the  fee  in 
either  event.^  So,  too,  where  the  testator  says,  "  I  give  my  prop- 
erty to  my  legal  heirs,  in  the  same  proportion  as  they  would 
have  inherited  if  I  had  survived  my  wife,"  giving  her  in  the 
will  a  life  estate,  he  will  be  conclusively  presumed  to  mean 
those  who  would  have  been  his  heirs  if  he  had  died  immediately 
after  his  wife.-  And  Avhere  the  testator  devises  land  to  his  wife 
for  her  life,  and  after  her  death  to  be  equally  divided  among 
his  and  her  heirs,  he  means  the  estate  to  vest  in  those  of  his 
heirs  who  survive  the  wife.' 

§  012.  Gifts  to  heirs  of  living  person  —Heirs  apparent  or 
presumptive  —  Recognition  of  ancestor  as  living. —  In  strict- 
ness of  language,  no  one  is  the  heir  of  a  living  person,  under 
the  well-known  maxim  '■'■Nemo  est  hares  vlveyitis.^''  Hence,  if 
the  testator  shall  devise  land  to  the  heir  or  heirs  of  A.,  who  is 
living  at  the  execution  of  the  will,  and  is  mentioned  in  the  will 
as  living,  the  devise,  if  we  take  the  word  "  heirs ''  in  its  strict 
and  technical  sense,  will  be  void.*  In  such  cases  it  may  appear 
from  the  context  of  the  Avill  that  the  testator  did  not  mean  to 
use  the  word  in  its  technical  sense,  but  that  he  meant  it  in 

to  his  son,  who  was  his  sole  heir.   The  conveyance  of  the  property  should 

testator   then,  after    several    int«r-  be  made  to  the  daughter  at  the  deatli 

mediate  estates  in  remainder,  gave  of  the  testator.     Boydell  v.  Golight- 

the  foe  to  "his  own  rUjht  heirs,  and  ley,  14  Sim.  327. 

his,  her  and  their  heirs  and  assigns  '  Stokes  v.  Van  Wyck,  3  S.  K  R, 

forever."  When  it  became  necessary  337  (iyH7),  83  Va.  724;  In  re  Kenvoii, 

to  construe  this  will,  after  the  de-  17  R.  1.  149  (IWJO).  20  Atl.  R.  2!»4;  Doe 

termination  of  the  several  remain-  v.  Goodfn,  (5  Iloust.  (Del.)  o!»7. 

ders,  the  court  held  thata  remainder  ^pe^k  v.  Carlton.  154  Mass.  231.  234. 

in  fee  vestfd  in  the  son  of  the  testator  ^Bisson  v.  West  R  Co..  38  N.  K  R. 

at  the  death  of  the  latter.    S<»,  t«x».  in  104  (1894).  143  N.  Y.  125:   IJardy  v. 

Kawlinson    v.    Wans,    9    Hare.    673,  Gage.  60  N.  H.  582  (1891).     Contra, 

when- property  was  given  intrust  for  Walker  v.  Dunsljee,  88  Pa.  St.  439 

the  daughter  of  the  Uistator,  who  was  (IMdl).     See  also    cases    cited  />o.sf, 

his  wjle  lieir,  and  rrmaindfr  as  she  ,^  631. 

should  api>oirit,  and  in  dcrauit  to  the  M'hallonrr  v.  liowycr,  2  Ix.'on.  70, 

heirs  ami    aHsigns   of   tlw    U'stator,  Dyer,  99  h.,  |il.  (il,  1  I'okf,  06. 
equity  decreed  tliat  an   immediate 
53 


SIS  LAW    OF    WILLS.  [§  G12. 

some  otiior  secondary  signification.  lie  may  have  meant  by 
"heirs  of  A.,"  whom  he  mentions  as  alive,  the  heirs  apparent 
of  such  person, —  that  is  to  say,  those  who  would  be  his  heirs 
if  he  were  dead.' 

Some  of  the  authorities  hold  that,  in  order  that  the  word 
"  heirs  "  shall  be  construed  to  mean  " heirs  apparent "  or  "heirs 
presumptive,"  it  must  appear  from  the  face  of  the  will  itself  that 
the  testator  knew  the  ancestor  was  alive  at  the  date  of  its  ex- 
ecution. Parol  evidence  extrinsic  to  the  will  is  not  admissible 
to  vary  the  meaning  of  the  word  "heirs."  The  knowledge  by 
the  testator  of  the  existence  of  the  ancestor  is  evidenced  only 
by  language  in  the  will  recognizing  his  existence.  Such  lan- 
guage need  not,  of  course,  be  an  express  statement  that  the 
testator  knows  the  ancestor  is  living.  He  may  recognize  him 
as  alive  by  a  legacy  to  him,  as  by  providing  a  fund,  the  inter- 
est of  which  is  to  support  him  during  his  life;^  by  his  manner 
of  speaking  of  the  heirs,  as  when  he  devises  property  to  those 
Avho  are  now  the  heirs  of  A.,  and  he  has  given  A.  something  by 
that  name  in  another  clause  of  the  will;^  by  a  devise  to  the 
heirs  of  B.,  "  who  lives  in  the  town  of  C. ;  "  *  by  a  devise  to  the 
heirs  of  B.  '•^now  living j^"*^  or  by  devises  to  the  heirs  of  A.  and 
B.,  who,  the  testator  states,  are  deceased,  and  the  heirs  of  C, 

1  Bacon  v.  Fitch,  1  Root  (Conn.,  Goodright  v.  White,  2  "Wm.  Black. 
1790),  181;  Leake  V.  Watson,  60  Conn.  1010;  Doe  v.  Perratt,  5  B.  &  Cr,  48; 
498.  510,  21  Atl.  R.  1075;  Strain  v.  Loveday  v.  Hopkins,  Arab.  273.  A 
Sweeney,  45  N.  E.  R.  20,  163  111.  603;  devise  to  the  heir  of  A.,  and  in  de- 
Durbin  v.  Redman,  140  Mass.  694;  /aii?i  o/ si<c/i /ic/r  then  to  A.  for  his 
Feltnian  v.  Butts.  8  Bush  (Ky.,  1871),  life,  cannot  refer  to  him  who  is  heir 
115,  119;  Howell  v.  Ackerman  (Ky.),  at  A.'s  death,  but  to  the  eldest  son 
S.  W.  R.  819;  Huglies  v.  Clark  (Ky.),  and  heir  apparent.  Lord  Beaulieu 
26  S.  W.  R.  187;  Morton  v.  Barrett,  23  v.  Cardigan,  Arab.  533.  In  Darbison 
Me.  257.  265;  Barton  v.  Tuttle,  62  N.  v.  Lord  Beaumont,  1  P.  W.  229,  the 
H.  558,  560;  Vannorsdall  v.  Van  De-  provision  was  for  the  heirs  male  of 
venter,  51  Barb.  (1867),  137, 146;  Cush-  the  body  of  R  L.,  to  whom  also  a  leg- 
man V.  Horton,  59  N.  Y.  149,  151, 154;  acy  was  given.  The  devise  was  ex- 
Harris  V.  Philpot,  5  Ired.  Eq.  (N.  C.)  ecutory,  and,  on  the  intermediate 
324,  328;  Knight  v.  Knight,  3  Jones'  limitations  falling  in  during  the  life 
Eq.  (56  N.  C.)  167,  169;  Holeman  v.  of  E.  L.,  her  eldest  son  was  allowed 
Fort,  3  Strobh.  (S.  C.)  66,  73;  Barber  to  take. 

V.  Pittsburgh,  F.  W.  &  C.  Ry.  Co.,  17  2Cushman  v.  Horton,  59  N.Y.(1874), 

S.  Ct.  488.  166  U.  S.  83,  108;  James  v.  149,  153;  Amb.  533. 

Richardson,  1  Vent.  334,  2  Lev.  232,  3  Barton  v.  Tuttle,  62  N.  H.  558,  560, 

T.  Raym.  330,  1  Eq.  Cas.  Abr.  214;  <Carne  v.  Roche,  7  Bing.  226. 

Burchett  v.  Durdant,  2  Vent.  311;  5  james  v.  Richardson,  1  Vent  334. 


§  613.]  GIFTS    TO    HEIKS    AND    NEXT    OF    KIN.  819 

Avho  is  merely  mentioned  by  narae.^  In  all  such  cases,  where 
the  ancestor  has  children  living  they  will  be  presumed  to  be 
the  persons  intended,  and  they  Avill  take  an  immediate  inter- 
est. The  presumption  is  that  the  testator,  in  the  case  of  a  de- 
vise to  his  own  heirs,  means  those  who  are  such  at  his  death, 
and  not  those  who  are  his  heirs  presumptive  or  heirs  apparent; 
and  the  construction  in  favor  of  those  who  are  his  heirs  ap- 
parent will  yield  readily  to  the  indication  of  a  contrary  inten- 
tion from  the  context  of  the  will.' 

§613.  Devises  to  heirs  peculiarly  described — Heirs  of  a 
particular  name. —  Xo  rule  of  law  prevents  a  testator  from 
modifying  his  provisions  for  heirs  as  purchasers,  whether  they 
are  his  own  heirs  or  the  heirs  of  another  person,  by  adding 
particular  qualifications  to  the  term  "  heirs,"  where  the  word 
is  used  as  a  word  of  purchase.  If  the  word  "  heirs  "  is  used  in 
the  will  as  a  word  of  limitation,  it  must  be  taken  in  its  ordi- 
nary sense  as  meaning  those  upon  whom  the  real  estate  de- 
volves in  case  of  the  intestacy  of  the  ancestor,  and  the  testator 
cannot,  by  adding  words  of  description  or  modification,  create 
a  new  kind  of  inheritance  which  would  be  contrary  to  the  es- 
tablished rules  of  law.  The  superfluous  words  will  be  rejected 
and  the  estate  devised  will  descend  to  the  heirs  general.' 

But  a  devise  to  "  my  own  right  heirs  of  the  name  of  T.,"  *  or 
"  to  the  right  heirs  of  the  testator  being  of  the  name  of  H.,"  * 
where  the  word  "  heirs  "  is  a  word  of  purchase,  is  valid.®    And 

iVannorsdall  v.  Vandeventer,  51  (1891),  3  Ch.  159:  Carrier  v.  Price,  Id. 

Barb.  (N.  Y.,  18G7).  137.  146;  Simons  The  fact  that  thp  aucestor  is  an  alien 

V.  Garrett,  1  Dev.  &  Bat.  Eq.  (21  N,  C.)  and  incapable  of  holding  land  is  not 

336,  393.  material  where  a  devise  to  the  heir 

2  In  some  cases,  where  the  testator  of  A.  is  construed  to  mean  the  heir 

has  not  in  the  will  recognized  the  apparent,  as  the  heir  takes  as  per- 

ancestor  as  living,  it  has  been  held  sona  dcsir/nata. 

that  the  word  "heirs"  might  be  con-        *  Jolinson  v.  Whiton,  159  Mass.  424, 

Btrued  as  "heirs  apparent.*'    Morton  425.  34  N.  E.  R.  542  ("to  A.  and   her 

V.   Barrett,  22   Me.   (1843),   257,   205;  heirs  on  her  father's  side");  Gibbon 

Flint  v.  Stea.lmari,  30  Vt.  (1803),  210;  v.  (Jibbon,  40  Ga.  502  ("heirs  of  the 

Cox   V.   Belt/.hoover,    11    Mo.   (1845),  full  blood"). 

142.     A  devise  of  land  to  A.  "for  liis        <Tiiorpe  v.  Thorpe,  8  Jur.   (N.  S.) 

life  and  tlie  life  of  his  heir"  is  valid,  891,  10  W.  R.  778,  32  U  .1.  Exch.  79. 
and  the  effect  is  to  give  to  the  dev-        »  Wrightson  v.  Mai-auiay,  14  Meo. 

iueo  an   estate  during  his  own   life  &  Wei.  214,  232. 

and  the  life  of  the  [MTson  who  should        "Couiiden    v.    Clcrko,   Moore,  600, 

bebiiiheir  at  bis  death.     In  re  Amos  pi.  1181,  Hob.  29. 


S20  LAW   OF    WU.Lii.  [§  614. 

a  roinaindcr  to  tlio  lioir  of  the  testator '■' (;f  f/ie  name  of  II.'"' 
vests  in  him  who  :ins\v(M's  to  the  description  at  the  death  of 
tlie  testator,  thouuii  he  is  also  the  tenant  of  the  life  estate.^ 
So  where  the  testator  devised  land  ''to  his  imde  heirs  who  may 
live  in  IS.,"  and  dyin^-,  left  o\{\^ female  heirs,  the  court  held 
that,  as  he  had  excluded  not  only  all  fenuile  heirs,  but  also  all 
heii's  who  did  not  live  in  S.,  the  land  should  go  to  his  nearest 
male  rekitive  who  resided  in  S.  at  the  date  of  the  testator's 
death .2  So,  too,  a  devise  after  a  life  estate  to  "  the  descend- 
ants and  heirs  at  law  of  the  life  tenant,  if  any,  according  to  the 
hxws  of  descent  and  distribution,"  can  only  be  claimed  by  heirs 
at  law  Avho  are  also  descendants.  A  mother  and  a  brother 
and  a  sister  of  the  half  blood  of  the  life  tenant  cannot  take  as 
descendants  and  heirs  at  law.^ 

§  614.  The  construction  of  a  devise  to  the  heir  in  the 
singular. —  The  English  cases  have  settled  the  rule  of  con- 
struction that  a  devise  to  A.  and  to  his  heir  confers  a  fee-simple 
on  A.,*  and  a  gift  to  the  heir  of  A.  would  most  likely  include 
all  persons  Avho  are  his  heirs  at  the  date  of  his  death  who 
would  take  by  purchase,'^  the  word  "  heir  "  being  nomen  collec- 
tivum,  and  including,  in  itself,  all  upon  whom  the  land  descends 
according  to  law.  Thus,  in  an  early  American  case,  it  was 
held  that  a  devise  to  the  '■^male  Juir  (f  the  Ijody  of  A.  laufully 
'begotten''  created  a  fee-tail  in  all  the  sons  of  A."  But  of  course 
a  devise  to  the  heir  or  male  heir  of  A.  "  for  the  term  of  his 
natural  life,"  while  it  might,  in  America  at  least,  make  all  the 
heirs  or  male  heirs  tenants  in  common,  would  not  create  more 
than  an  estate  for  life  in  any  one  of  them.  And  by  the  English 
cases  it  is  held  that  though  a  gift  to  A.  and  the  heir  of  his  body 

1  Wrightson  v.  Macaulay,  14  Mee.  Russ.  384 ;  Burchett  v.  Durdant,  Skin. 
&  W.  214,  232.  206,  Co.  Litt.  10  A.     The  rule  of  the 

2  Keeler  v.  Keeler,  39  Vt.  (1836),  555.  text  to  the  effect  that  all  take  a  de- 
556.  Under  a  gift  to  A.  and  "her  vise  to  the  heir  in  the  singular,  who 
heirs  by  blood,"  an  illegitimate  son  are  heirs  at  the  death  of  the  ancestor, 
of  A.  was  included,  he  being  her  heir  is  illustrated  in  Mouusey  v.  Balmire, 
by  statuta  Hayden  v.  Barrett,  52  N.  4  Russ.  384,  where  a  fund  was  given 
R  R  530  (Mass.,  1898).  "  to  my  heir,"  and  it   was  divided 

3  Tichenor  v.  Brewer's  Executor,  among  three  co-heiresses,  the  daugh- 
(Ky.,  1896),  33  S.  W.  R.  86.  tere  of  the  testator. 

<  Skinner,  385,  583.  «  Larabee  v.  Larabee,  1  Root  (Conn., 

5  Williams  v.  Holmes,  4  Rich.  Eq.     1793),  555. 
(S.  C')  475;    Mounsey  v.  Blamire,  4 


§  015.] 


GIFTS    TO    HEIRS    AND   XEXT    OF    KIX. 


SiU 


confers  an  estate  tail  upon  A.,  nevertheless  a  devise  to  the  heir 
of  the  body  of  A.,  the  heir  taking  here  by  purchase,  would  not 
confer  an  estate  tail  upon  him.^  The  heir  of  the  body  men- 
tioned in  the  singular  takes  by  purchase  as  jpersona  designata, 
and,  in  the  absence  of  a  statute  by  which  a  devisee  is  to  take  a 
fee  in  the  absence  of  a  contrary  intention  shown  expressly  or 
by  necessary  implication,  he  would  only  take  a  life  estate. 
More  recently  it  has  been  held  that  a  limitation  over,  in  the 
case  of  the  death  of  a  person  without  an  heir,  or  without  a 
lairful  heh\  meant  without  leaving  issue  or  children  him  sur- 
viving, which  construction  has  the  effect  of  makmg  the  word 
"  heir,"  used  in  the  singular,  equivalent  to  "  heirs  of  the  body."  - 
§615.  The  meauing  of  the  term  '^^  right  heirs."  —  The 
words  ''  right  heirs,"  in  a  devise  of  land  or  gift  of  personalty, 
are  synonymous  with  heirs  or  heirs  at  law.^  Thus,  a  gift  of 
personal  property  to  the  "  right  heirs  of  A."  will  go  to  those  per- 
sons upon  whom  real  estate  would  descend,  but  not  to  the  hus- 
band or  personal  representatives  of  A.*   In  one  case,  where  the 


1  Chambers  v.  Taylor,  2  ]\Iy.  &  Cr. 
376. 

nVoodruff  V.  Pleasants.  81  Va. 
(1865;,  40;  Rollins  v.  Kell.  20  S.  E.  R. 
209,  115  N.  C.  68;  Benson  v.  Linthi- 
cum.  75  Md.  141.  23  AtL  R.  133; 
King's  Heirs  v.  Kin;j;.  12  Ohio  (1843). 
390.  471.  A  devise  to  tlie  heir  of  A. 
differs  from  a  devise  in  which  the 
testator  says,  "I  make  A.  my  lieir." 
In  tl»e  latter  case  A.  takes  the  fee- 
simple.  Spark  V.  Purnell.  Hob.  75; 
Ridiards  v.  Bergavenny,  2  Vern.  324. 
"These  ca.ses  prove  that  the  word 
*  heir 'in  the  singular  number  has 
sometimes  tlie  SJime  effect  as  the 
word  'heirs'  in  the  plural;  but  if 
words  of  limitation  are  supt-radded 
to  thi!  word  '  lieir,' it  is  consideretl  as 
conclusively  showing  that  tiie  word 
is  u.sed  as  a  word  r»f  i)urchasc.  When 
that  is  not  the  case  it  is  considered 
in  construing  wills  a.*,  immi-n  cnllfc- 
tivum  for  the  piir|><)si'  of  creating  an 
estate:  tail  in  the  lin^t  taker,  and  not 
OS  creating  an  estate  tail  in  the  |M'r- 
Bon  answering  the  description  of  heir. 


If  the  word  would  per  se  give  an  es- 
tate of  inheritance  to  the  party  an- 
swering the  description,  there  would 
be  no  reason  for  any  distinction 
whether  words  of  limitation  or  in- 
heritance were  or  were  not  super- 
added. These  cases  therefore  prove 
that  the  daughters  would  not  have 
taken  estates  of  iniieritance  as  pur- 
chasers under  the  will;  and  it  is  not 
])retended  that  their  parents  took 
more  than  estates  for  life."  By  Lord 
Cottenham  in  Chambers  v.  Taylor, 
2  My.  &  Cr.  37G.  A  devise  to  the 
person  or  persons  "who  at  my  death 
shall  be  the  heir  or  heirs  at  law  of 
A."  was  held  to  convey  a  life  estate. 
Doe  d.  Sums  v.  Garlick,  14  M.  ct  W. 
09S. 

>1  Waslil).  on  Real  rrojH'rty.  72; 
In  re  McCn-a's  Kstatc,  180  I'a.  St.  81, 
36  Atl.  R.  412. 

<Mas«»n  V.  Bailey  (Del.,  1888),  14 
Atl.  R.  309;  Williman  v.  Holme.s.  4 
Rich.  (S.  C)  175;  (Jordun  v.  Small,  53 
Mil.  550;  Do  Beauvoir  v.  D»  Ik>auvoir. 
15  Sim.  163,  3  H.  L.  Cos.  524.     See  al.s.. 


822  LAW    OF    WILLS.  [§  61C. 

gift  was  "  to  my  own  right  heirs  of  the  name  of  II.  I.,"  the 
words  were  hold  to  mean  the  "  heir  at  law." ' 

§  Gl().  CirciiinstjnK'es  under  which  tlie  word  "heirs  "  is 
equivalent  to  the  word  **  children."  —  It  may  appear  from 
the  context  tliat  the  testator  has  used  the  words  "  heir "  and 
"heirs,"  not  in  their  strict  and  primar}^  sense,  but  in  a  limited 
sense,  and  as  synonymous  with  the  words  "child"  or  "chil- 
dren." Cases  of  this  sort  are  extremely  numerous,  and  they 
may  be  illustrated  by  the  following  example:  A  testator,  hav- 
ing several  children  alive  at  his  death,  devises  property  to  them 
as  a  class  in  equal  shares,  to  be  enjoyed  by  each  of  them  during 
his  or  her  natural  life,  and  on  his  or  her  death  the  share  of  each 
to  go  to  his  or  her  "  heirs."  From  the  equality  of  division 
which  the  testator  has  made  among  his  children,  it  may  well 
be  presumed  that  he  did  not  use  the  Avord  "  heirs  "  in  its  pri- 
mary sense,  for,  if  he  did,  the  share  of  one  of  his  children  avIio 
died  without  leaving  a  child  would  go  to  his  brothers  and  sis- 
ters, who,  in  such  event,  w^ould  be  his  heirs.- 

On  the  other  hand,  if  we  assume  that  the  testator,  by  the  w^ord 
"  heirs,"  meant  children,  we  have  a  remainder  vested  in  the 
children  of  each  devisee  as  a  class,  which  is  subject  to  open 
and  let  in  all  after-born  children.*    If  this  be  so,  then  any  of 

Thorpe  v.  Thorpe,  8  Jur.  (N,  S.)  871,  the  testator  directed  that  the  share 

32  L.  J.  Exch.  79,  10  W.  R.  778.  of  any  beneficiary  dying  should  "  be 

iln  re  Ford,  73  L.  T.  5.  sold  and  divided  among  his  heirs." 

2  In  the  early  case  of  Loveday  v.  the    court,     construing     the    word 

Hopkins,   reported  in   Ambler,  278,  "heirs"  to  mean  children,  said:  '•! 

the  testator  first  gave  a  pecuniary  am  at  a  loss  to  conceive  why  he 

legacy    to    "  my    sister     Loveday  s  should  direct  the  property  to  be  sold 

heirs,"  and  then  another  sum  to  be  except  for  the  purpose  of  division 

equally  divided  among  the  children  amongst  a  larger  class  than  the  ten- 

of  anotlier  sister.    The  former,  at  the  ants  for  life.    He  does  not  think  that 

date  of  the  will,  had  two  children,  six  persons  are  too  many  to  hold 

one  of  whom   married  and  prede-  and  enjoy  it  in  common,  but  he  does 

ceased  the    testator,  leaving    three  think   it    necessary  to    direct  that 

children  who  claimed  as  heirs.     The  after  their  deaths  it  shall  be  sold  for 

court  held  that  the  two  legacies  as-  the  purpose  of  division.   Where  there 

similated,  and  that  the  child  of  Mrs.  is  a  gift  of  personal  property  to  one 

Loveday,  who  survived  the  testator,  for  life,  and  after  his  death  amongst 

took  the   legacy  to  Mrs.  Love<lay"s  his  heirs,  I  should  have  no  doubt  that 

heirs  to  the  exclusion  of  the  children  the  expression  '  heirs '  would  apply 

of  the  deceased  child.     And  in  an-  to  children."    Sir  J.  Romilly,  JL  R., 

other  case   decided  in  the  English  in  Bull  v.  Comberbach,  25  Beav.  540. 

chancery,  where,  after  six  life  estates  ^  Ante,  §  558. 
running  concurrently  in  a  trust  fund, 


G16.] 


GIFTS    TO    HEIRS   AND   NEXT    OF    KIX. 


823 


the  children  designated  by  the  word  "heirs"  ma}^  dispose  of 
his  or  her  interest  during  the  life-time  of  the  parent.  This  con- 
struction is  strengthened  if  the  testator  directs  tiiat  on  the 
death  of  the  life  tenant  without  children  the  property  shall 
descend  to  /as  heirs.  So  in  England  it  has  been  said  that  this 
construction  -will  always  be  had  where  the  direction  is  to  divide 
the  property  among  the  heirs  of  a  life  tenant  after  the  expira- 
tion of  his  estate.^  And  a  gift  to  the  heirs  of  A.  that  "  he  noio 
has,"  or  to  the  heirs  of  B,  "  should  thei/  arrive  at  the  age  of 
twenty-one,"  or  to  the  heirs  of  C,  the  ivife  of  D.,  means  chil- 
dren in  each  case.^  So  where  a  testator  gave  property  to  his 
daughters  by  name,  and  to  t/ielr  hei?'s,  stating  that  he  wishes 
his  daughters  and  t/eir  children  to  have  the  full  benefit,  the 
word  "  heirs  "  can  mean  nothing:  else  but  children.^ 


1  Bull  V.  Comberbach,  25  Beav.  40. 
In  tlie  following  cases  the  word 
"heirs"  was  held  to  mean  children: 
Bond's  Apjieal.  31  Conn.  183;  Baxter 
V.  Winn,  13  S.  E.  R.  634,  87  Ga.  239; 
McCartney  v.  Osburn.  118  111.  403; 
Underwood  v.  Robbins,  117  Ind.  308, 
310;  Levengood  v.  Hoople,  124  Ind. 
27,  29;  Conger  v.  Lowe,  124  Ind.  368, 
374,  24  N.  E.  R.  889;  Jackson  v.  Jack- 
son, 127  Ind.  346,  349;  Stevens  v. 
Flanigan,  131  Ind.  122,  127;  Essick 
V.  Caple,  131  Ind.  207,  209:  Allen  v. 
Craft,  109  Ind.  476,  480;  McNutt  v. 
McNutt,  116  Ind.  54r>,  560:  Tinder 
V.  Tinder.  131  Ind.  381,  388;  William- 
son V.  Williamson,  18  B.  Mon.  (57 
Ky.)  329;  Turinan  v.  White,  14  B. 
Mon.  (53  Ky.)  560:  Hughes  v.  Clark 
(Ky.),  26  S.  \V.  R.  187;  Morton  v.  Bar- 
rett. 22  Me.  257,  267;  Bovvers  v.  Por- 
ter, 4  Pick.  19H;  Ellis  v.  Essex  Bridge 
Co.,  2  Pick.  (Mass.)  243;  King  v.  Lit- 
tle, 1  Cusli.  (Mass.)  430,  412;  Haley 
V.  Boston,  108  Mas.s.  579;  Maguire  v. 
Moore  (Mo.  Sup.),  18  S.  W.  IL  897; 
Wiggin  V.  Perkins.  5  Atl.  R.  904.  64 
N.  H.  36.  38;  l)<-n  v.  I^-iqucar.  4  N.  J. 
Ix  301.  305;  Norris  v.  Bi'yca.  13  N.  Y. 
273,  280;  Taggart  v.  Murray.  53  N.  Y. 
233.  238:  In  re  Ix)gan'K  KsUiU:  30  N. 
R  K.  4H.-,,  i;n  N.  Y.  456.  160;  Kldiidge 
V.  Eldridge,  41  N.  J.  Ivj.  89,  91 ;  Davis 


V.  Davis.  39  X.  J.  Eq.  13;  Ballentine  v. 
Wood.  42  N.  J.  Eq.  552,  9  Atl.  R  582; 
Johnson  v.  Brasington,  86  Hun.  104; 
Stewart  v.  Powers.  9  Ohio  Cir.  Ct.  R. 
143;  Id..  2  Ohio  Dec.  219;  Vannors- 
dall  V.  Vandeventer.  51  Barb.  (N.  Y., 
1868),  137;  Hard  v.  Ashley.  117  N.  Y. 
606,  614;  Scott  v.  Guernsey,  48  N.  Y. 
106;  Kiah  v.  Grenier,  56  N.  Y.  220, 
225;  Knight  v.  Kniglit.  3  Jones'  Eq. 
(56  N.  C,  1856),  167;  Ward  v.  Stow,  2 
Dev.  Eq.  (N.  C.)  509;  Harris  v.  Phil- 
pot,  5  Ired.  Eq  (40  N.  C,  1848),  324; 
King  V.  Beck,  15  Ohio  (1846),  559; 
Bunnell  v.  Evans.  26  Ohio  St.  409, 
410;  Jones  v.  Lloyd,  33  Ohio  St.  572, 
578,  580;  Findlay  v.  Riddle,  3  Binn. 
(Pa.,  18101.  139:  Eby  v.  Eby.  5  Pa.  St. 
461;  Urich's  Appeal.  86  Pa.  St.  386, 
391,  2  W.  N.  C.  550;  Titzell  v.  Coch- 
ran (Pa.,  1887),  10  Atl.  R.  9;  Haver- 
steck's  Aiipeal,  103  Pa.  St.  394;  Bras- 
ington v.  Hanson  (Piu  Sup.).  24  Atl.  R. 
344;  Drum  v.  Miller,  18  Pa.  Co.  Ct 
R  318:  Holeman  v.  Fort.  3  Strobh. 
(S.  C.)  E<i.  66:  Dukes  v.  Faulk,  37  S.  C. 
255:  Blair  v.  Snodgra.ss,  1  Sneed  (23 
Tenn.).  1;  Hinton  v.  Milburn,  23  W. 
Va.  166;  Myrick  v.  Heard.  31  Fed.  R. 
244. 

-Barton  v.  Tiilll.',  K  N.  H.  ,558. 

3Bruiiifi('ld  v.  DnMiUs.  1(»1  Ind.  191. 
195;  Evans'  Estate,  155  Pa.  St.  646,  26 


82A  LAW  OF  ^vII.I.s.  [§  C17. 

§  017.  HtMi-s  ma.v  mean  cliildron  in  a  devise  in  fee,  and 
if  the  devisee  die  witlioiit  lieirs,  tlien  over. —  The  word 
''heirs"  is  sometimes  construed  as  precisely  synonymous  with 
the  word  "children  "  under  the  following  circumstiinces:  The 
testator  gives  property  to  A.  and  his  heirs,  or  he  gives  prop- 
erty to  A.  in  such  hmguage  as  will,  under  the  statute,  give 
him  the  fee-simple  icitJi  a  J'nnitdtion  ooer  to  B.  if  A.  sliould  die 
'■'■  irit/iout  heirs.''''  If  A.  shall  die  leaving  children,  it  does  not 
of  necessity  follow  that  they  are  to  take  an  estate  in  remainder 
as  purchasers  by  implication,  for  if  A.  has  a  fee-simple  he  has 
the  power  to  alienate  it  at  any  time  before  or  at  his  death.  If 
A.  shall  have  a  fee  with  a  proviso  that  if  he  die  without  lieirs, 
meaning  children,  it  goes  to  others,  he  takes  at  common  law 
an  estate  tail,  but  in  America  a  defeasible  fee,  or  a  fee  condi- 
tional, which  becomes  absolute  in  him  and  his  children  as  soon 
as  he  shall  have  any.  They  will  take  by  descent,  i.  e.,  by  lim- 
itation, and  the  estate,  which  is  limited  over  to  B.  upon  his 
death  " without  heirs"  will  vest  only  in  case  he  shall  die  with- 
out leaving/  children  surviving  him.  It  will  be  defeated,  though 
he  may  die  leaving  other  heirs  surviving  hini.^  A  devise  to 
A.,  and,  if  he  shall  have  a  lawful  heir,  then  in  fee  to  the  said 
heir,  and,  if  A.  shall  die  without  an  heir,  then  over  to  B.,  gives 
A.  a  life  estate,  with  a  remainder  to  his  children  at  his  death;' 
and  a  devise  to  M.  and  AV.,  in  general  language,  but,  if  either 
of  them  should  die  without  leaving  an  heir,  then  to  the  sur- 

AtL  R  739.     If  the  testator  uses  the  Bundy  v.  Bundy,  38  N.  Y.  (1868),  410; 

word  •'  heirs  "  in  speaking  of  liis  own  Taggart  v.  Murray,  53  N.  Y.  (1873). 

childi-en,  it  may  be  reasonable  to  pre-  223,   238;   Francs   v.  Whitaker,   116 

siune  that  lie  uses  it  to  describe  their  N.  C.  518,  21  S.  E.  R  175;  Hilliard  v. 

children.     Lott  v.  Thompson.  3G  S.  C.  Kearney.  1  Busb.  Eq.  (45  N.  C,  1853), 

38.  15  S.  E.  R  278.     See  po^t,  %  662,  221;    King  v.   King,    15   Ohio,   561: 

as  to  the  application  of  the  rule  in  Durfee  v.  McNeil,  58  Ohio  St.  238.  50 

Shelly's case, where  "heirs" is equiva-  N.   E.  R  727;  Stump  v.   Findlay,  2 

lent  to  "•children."  Rawle  (Pa.),  168;  Bailey  v.  Hawkins, 

1  Anthony  v.  Anthony,  55   Conn.  18  R  I.  573 :  Moon  v.  Herndon,  4  Des. 

(1887),  256.  11  AtL  R  45;  Underwood  Eq.  (S.  C.)  459;  Hayne  v.  Irvine,  25 

V.  Robbins,  20  N.  E.  R  230,  117  Ind.  S.  C.  289;  Franklin  v.  Franklin,  91 

308,   310;    Jones    v.    Miller,   13   Ind.  Tenn.  119,  134,  18  S.  W.  R  61;  Robin- 

(1859),  337;  Pratt  v.  Flamer,  5  H.  «&  son  v.  Boyd.  92  Tenn.  1.  39.  23  S.  W. 

J.  (Md..  1820).  10. 22;  Lednum  v.  Cecil,  R.  72;  Gish  v.  Moomaw,  89  Va.  345. 
76  Md.  149,  24  Atl.  R  452;  Terry  v.        ^Howell  v.  Knight,  100  N.  C.  254, 

Briggs,  12  Met.  (Mass.)  17;  Cody  v.  6  S.  E.  R  721. 
Bunn,  46  N.  J.  Eq.  131,  18  Atl.  R  857; 


§  OlS.]  GIFl'S   TO    HEIRS    AND    NEXT    OF    KIX.  825 

vivor,  means  if  either  slioulil  die  Avithout  leaving  children.^ 
So  in  a  devise  to  the  testator's  three  nieces  and  to  the  survivors 
of  them,  and,  "if  all  shall  die  ic'dhout  heif's,^^  then  over  to  an- 
other; and  if  that  devisee  should  die  without  issue,  then  over, 
the  word  "  heirs  "  means  children.-  In  some  cases,  where  a  pro- 
vision that  if  the  first  taker  shall  die  vyithout  heirs  the  estate 
shall  go  to  another,  has  been  construed,  the  word  "  heirs  "  is 
synonymous  with  issue,  and  the  devise  over  will  not  take  ef- 
fect unless  the  first  devisee  shall  die  without  issue  living  at  his 
death.^ 

§  6lS.  When  the  word  ^^  heirs  "  means  devisees  or  legatees. 
The  word  '*  heirs  "  is  sometimes  loosely  used  by  the  testator  as 
synonymous  in  meaning  with  the  words  ''legatees"  or  ''dev- 
isees." An  example  of  this  occurs  where  the  testator  speaks 
of  liis  heirs  "  hefore  or  ahove  'mentioned^''  meaning  mentioned  in 
the  will.  Thus,  where  the  testator,  having  given  legacies  of 
stock  in  corporations  to  several  persons,  directed  the  executor 
to  pay  over  the  dividends  on  that  stock  to  the  "  lieirs  'before 
iMixt'ioned^  it  was  held  that  the  executor  should  pay  the  divi- 
dends over  to  all  the  legatees  who  received  the  stock.^  But,  on 
the  other  hand,  in  the  case  of  cumulative  gifts  to  the  "  heirs 
before  raentmied^''  those  persons  intended  to  be  benefited,  the 

1  Baxter  V.  Winn,  87  Ga.  239.  17  S.  Head  (Tenn.),  300;  Ward  v.   Saun- 

E.  li.  63-1;  Dew  v.  Barnes,  1  Jones'  ders.  3  Sneed  (Tenn.),  389.     See  cases 

Eq.  (N.  C.)  149,  151.  cited  po.sf,  §  845. 

-The  court  relied  upon  the  facts  ^Collier  v.  Collier,  3  Ohio  St.  (1854). 

that  two  of  the  nieces  were  unmar-  3(59,  374;  Scudder  v.  Van  Arsdale,  12 

ried,  and  that  the  testatrix  had  de-  N.  J.  Eq.  109,  113;  Estate  of  Schomps 

clared  that  she  meant  to  benefit  her  (N.  J.,  1899),  42  Atl.  R.  56fi.     The  dis- 

relatives.    Haley  v.  Boston,  108  Mass.  tinetion  to  be  noted  is  between  in- 

577,579.  eluding    under    the    phrase    "heirs 

3  Rol)erts  v.  Ogbourne.  37  Ahu  lieretofore  mentioned,"  all  legatees 
(1801),  178;  Gifford  v.  Choate.  100  and  devisees,  whether  they  are  in 
Mass.  (18f)8i,  345;  Benson  v.  Linthi-  fact  heirs  or  strangers,  and  includ- 
cum,  75  Md.  141.  23  Atl.  R  133:  Wat-  iiig  only  those  i>ersons  wim  are  men- 
ers  V.  Bishop,  122  ImL  (1889),  51f5.  520;  tionod  in  tiie  will  and  who  are  ri/.so 
Fisk  V.  Keene,  35  Me.  349,  355;  In  re  the  heirs  of  the  testator.  It  is  very 
Moore's  Estate.  33  N.  Y.  S.  419,  11  likely  that  the  word  "mentioned"' 
Misc.  R  430;  Mfxire  v.  Lewi.s,  4  Ohio  by  imi>lir-ation  means  given  a  benrjit. 
Cir.  Ct  284;  Kniglit  v.  Knight,  3  An  express  mention  of  an  heir  in 
Jones'  F^[.  (50  N.  C,  1850),  109;  New-  disinheriting  him  would  hardly  con- 
kirk  v.  Huwes,  5  Jones'  Kq.  (50  N.  C.)  Htitute  such  a  int-ntion  of  iiim  as  to 
2()7;  Gilison  v.  Gibson,  1  .Ion<'s'  L.  bring  iiim  wilhin  tlie  chujs  of  "heirs 
(49  N.  C;  425;    Vudeu    v.   Ilance,   1  heretofore  na-nlionod." 


826  LAW   OF  WILLS.  [§619. 

court  said,  were  such  legatees  only  before  mentioned  as  would 
have  been  heirs  of  the  testator  if  the  will  had  not  been  made.^ 
In.  this  case  the  residue  of  the  personal  property  was  directed 
to  be  equally  divided  among  "  the  whole  of  ray  heirs  named  in 
this  my  last  wiW'  Where  this  distinction  is  recognized,  the 
word  "  heirs,"  used  in  referring  to  another  part  of  the  will,  will 
not,  of  course,  include  a  corporation  which  is  a  legatee.*  So, 
too,  a  U'<jacy  ''  to  my  heirs  not  heretofore  named  "  is  to  be  paid 
to  all  tiie  next  of  kin  of  the  testator  who  are  not  beneficially 
named  in  the  will.''  So  where  the  testator  gave  property  to 
his  "  legal  heirs  "  (in  the  plural)  "  other  than  those  hereinbefore 
named,"  it  is  not  material  that  the  only  person  who  answered 
this  description  was  the  sole  heir.* 

§  619.  The  word  "  heirs,"  in  gifts  of  personal  property, 
means  next  of  kin, —  In  the  case  of  a  gift  of  jpersonal  property^ 
made  either  to  the  heirs  of  the  testator  or  to  the  heirs  of  an- 
other person,  the  question  may  arise  w^hether  the  word  "  heirs  " 
is  employed  as  meaning  those  to  whom  land  descends,  Avhich  is 
its  ordinary  sense,  or  whether  it  is  used  to  indicate  those  only 
w^ho  take  the  personal  property  in  intestacy.  Where  personal 
property  alone  is  bequeathed  to  the  heirs,  either  of  the  testator 
or  of  another  person,  and  the  will  itself  does  not  show  that  the 
testator  has  employed  the  word  in  its  technical  sense,  it  may 
be  presumed  that  the  testator  has  used  it  to  indicate  the  next 
of  kin  according  to  the  statute  w^ho  succeed  to  the  personal 
property  in  case  of  intestacy.^ 

lEx  parte  Artz,  9  Md.  (1856),  65;  that  they  did  not  "trouble  his  heir," 

Porter's  Appeal,  15  Pa.  St.  (1850),  201.  the    devise    was    good   though    the 

2  See  also  Townsend  v.  Towiisend,  nephew  was  not  the  heir  mala  Py- 
25  Ohio  St.  177.  bus  v.  Mitford,  1  Vent.  381.     If  the 

3  Graham  v.  De  Yampert,  106  Ala.  testator,  having  by  his  will  disposed 
279,  17  S.  R.  355,  356.  of  all  his  property,  directs  his  exeo 

4  McCabe  v.  Spruil,  1  Dev.  Eq.  (16  utor  or  his  trustees  to  inve.st  his 
N.  C.)  189.  property  for  the  benefit  of  his  heirs, 

5  Minot  v.  Harris,  132  Mass.  528,  531 ;  he  means  for  the  benefit  of  his  leg- 
and  c/.  White  v.  Springett,  L.  R  4  atees  and  devisees  whether  they  are 
Ch.  800.  In  Rose  v.  Rose,  17  Ves.  847,  also  his  heirs  or  not.  Macpherson  v. 
"my  heir  itndcr  this  will  "  was  held  Stewart,  28  L.  J.  Ch.  177. 

to  refer  to  the  residuary  devisee  and  •'  Graham  v.  De  Yampert,  106  Ala. 

legatee.     And  where  a  testator  gave  279,  17  S.  R.  355:  Eddings  v.  Long,  10 

all  his  land  to  his  nephew,  calling  Ala.  (1846),  203, 206:  Rusing  v.  Rusing, 

him  "his  heir  male,"  and  giving  leg-  25  Ind.  (1865),  63:  ilace  v.  Cushman, 

acies  to  his  daugliters  on  condition  45  Me.  250;  Morton  v.  Barrett,  22  Me. 


§  619.] 


GIFTS    TO    HEIKS    AND    NEXT    OF    KIN. 


S27 


The  construction  of  the  word  "  heirs,"  in  gifts  of  personal 
property,  to  mean  "  next  of  kin,"  is  favored  by  the  circumstance 
that  the  gift  to  the  heirs  is  sulstltHtlonarij  in  its  character.^ 
That  is  to  say,  if  the  testator,  in  order  to  avoid  a  lapse,  after 
giving  personalty  to  A.,  provides  that,  in  the  case  of  A.'s  death 
before  the  death  of  the  testator,  the  property  shall  go  to  A.'s 
heirs,  the  gift  will  be  equivalent  to  a  bequest  to  the  next  of 
kin  of  A.  The  evident  intention  of  the  testator,  apparent  from 
such  a  provision,  is  to  benefit  those  persons  only  Avho  would 
have  taken  the  property  if  A.  had  survived  the  testator  and 
taken  an  absolute  interest  and  then  died.^  These  persons  are 
the  statutor}^  next  of  kin  of  A.,  for,  if  A.  had  survived  the  tes- 
tator for  only  an  instant,  they  and  not  his  heirs  Avould  have 
taken  the  estate  which  came  to  him  under  the  will.^ 


257,  264;  Bailey  v.  Bailey,  25  Mich. 
(1872),  185,  190;  Sweet  v.  Dutton,  109 
Mass.  589, 591 ;  Houghton  v.  Kendall, 
7  Allen  (89  Mass.,  1863),  72, 75;  Loring 
V.  Thorndike,  5  Allen  (Mass.).  257,  269; 
White  V.  Stan  field,  15  N.  K  R  919 
(1888),  1-16  Mass.  424;  Hardy  v.  Gage, 
06  N.  H.  552,  22  Atl.  R  557:  Scudder 
V.  Van  Arsdale,  13  N.  J.  Eq.  (1860), 
109,  110;  Reen  v.  Wagner,  51  N.  J. 
Eq.  1,  26  Atl.  R  467:  Lawton  v. 
Corlies,  127  N.  Y.  100,  106,  27  N.  R  R 
847;  McCormick  v.  Burke,  2  Dem. 
Sur.  (N.  Y.)  137;  In  re  Sinzheimer,  5 
id.  321;  Cushman  v.  Horton,  59  N.  Y. 
149,  151;  Brothers  v.  Cartwright,  2 
Jones'  (55  N.  C.)  Eq.  113,  116;  Corbit 
V.  Corbit,  1  Jones'  Eq.  (54  N.  C,  1853), 
114;  Henderson  v.Henderson,  1  Jones' 
(46  N.  C.)  L.  221;  Evans  v.  Go<lbold, 
6  Riclu  Eq.  (S.  C.)  26,  35;  I^IcCabe  v. 
Spruil,  1  Dev.  E(i.  (16  N.  C,  1829),  489; 
Stow  V.  Ward,  2  Dev.  Eq.  509;  Croom 
V.  Herring.  4  Hawks  (UN.  C,  1826), 
393;  Nel.srm  v.  Blue.  03  N.  C,  659; 
Fergu-son  v.  Stiuirt,  14  Oliio  St.  140; 
Gibljoiis  V.  lairlaiiib.  26  I'ii.  St.  217; 
liaskin's  Ai^m  al,  3  I'iu  St.  3()4;  Lit- 
tle's A|)|M-ul.  117  I'.-i.  St.  14.  11  Atl. 
R  .V.'O;  In  re  A.slitoii.  19  Atl.  R.  699, 
2«  W.  .\.  C.  41.  134  I 'a.  St.  390;  I'lir- 
viancc'H  A|»|).-al,2U  Atl.  R.  397,  20  W. 


N.  C.  420;  Hunt's  Appeal,  19  Atl.  R 
548,  25  W.  N.  C.  450;  Wood's  Appeal, 
19  Atl.  R  550, 25  W.  N.  C.  454;  Thomp- 
son's Trusts,  L.  R  9  Ch.  Div.  607. 

1  Ante,  %  324  et  seq. 

2  An  illustration  of  a  bequest  of  a 
substitutionary  character  to  heirs 
designed  to  avoid  a  lapse  is  found  in 
Vaux  V.  Henderson,  1  J.  «&  W.  388, 
where  a  money  legacy  was  given  to 
a  man,  ''and  failing  him  by  decease 
before  me,  to  his  heirs."  A  similar 
substitutionary  gift  was  similarly 
construed  in  Gettings  v.  McDermott, 
2  My.  &  K.  69.  The  intention  of  the 
testator  was  to  prevent  a  lapse.  "  The 
argument  was  a  very  fair  one,  that 
as  the  property  in  one  case  would 
have  gone  to  tlie  ])arty  absolutely, 
and  from  him  to  his  jiersonal  repre- 
sentatives, so  when  the  testator  spoke 
there  by  way  of  substitution,  of  th« 
Leir  of  the  body,  it  was  luulerstood 
that  he  meant  the  same  person  who 
wouhl  have  taken  after  him  in  caso 
there  had  not  been  a  laiise." 

3  Richardson  v.  ]\lartin,  55  N.  11.45; 
(iurdinshirc  v.  II in. is.  I  II«'ad  (38 
Tenn.).402;  Wright  v.  Chun-li.  1  IIolT. 
(;i».  (N.  v..  1H40),  212;  ll<..Ig.«.s  v. 
I'helps,  65  VI,.  3((2;  HuHcall  v.  (ox.  49 
Mich.  435,  41 1 ;  Jacob8  v.  JucubH,  2  K. 


828 


LAW    OF    WILLS. 


[§  t;i9. 


Yorv  often  a  iion-terluiical  meaning'  is  attached  to  the  word 
"lieirs,"  when  it  is  employed  in  disposing  of  personal  property, 
by  a  direction  to  divide  a  legac}',  consisting  of  a  sum  of  money 
among  the  heirs  of  a  person  other  than  the  testator  himself. 
Thus,  where  the  testator  directed  that  a  sum  of  money  should 
be  divided  among  the  heirs  of  his  late  brother,  the  court  held 
that  by  heirs  the  testator  meant  next  of  kin.  The  court  relied 
upon  the  fact  that,  as  was  apparent  from  the  will,  the  testator 
knew  the  ancestor  was  deail,  and  that  he  also  knew  that  he 
had  left  several  children,  only  one  of  whom  was  the  heir,  while 
all  were  the  next  of  kin.'  Another  circumstance  indicating 
that  the  testator,  in  disposing  of  personal  property  to  heirs, 
means  his  next  of  kin,  is  that  he  directs  it  to  be  paid  to  them, 
which  is  the  sole  mode  in  which  the  next  of  kin  of  a  de- 
ceased person  receive  the  shares  of  his  estate  to  which  they  are 
entitled  under  the  statute  of  distribution.'^  Thus,  where  the 
testator  directed  that  a  fund  of  personal  property  should  be 
invested  in  trust  "  for  the  benefit  of  the  heirs  of  the  body  of 


«fe  J.  729,  16  Beav.  ooT.  560:  In  re  Por- 
ter, 4  K.  &  J.  188:  In  re  Ganiboa.  4 
K  &  J.  7.56;  lu  re  Philps,  L.  R.  7  Eq. 
151;  In  re  Newton.  L.  R.  4  Eq.  171; 
In  re  Craven,  23  Beav.  333.  33.5;  Fin- 
lason  V.  Tatlock.  L.  R.  9  Eq.  257.  260; 
Wingfield  v.  Wingtield,  L.  R.  9  Ch.  D. 
65S;  Parsons  v.  Parsons,  L.  R.  8  Eq. 
260;  Vaux  v.  Henderson,  1  Jac.  & 
Wal.  388.  note;  Gittings  v.  M'Der- 
mott,  2  My.  &  K.  69;  Stannard  v. 
Burt,  52  L.  J.  Ch.  355,  48  L.  T.  660; 
Doody  V.  Higgins,  9  Hare.  32,  2  K.  & 
J.  729.  This  rule  is  applicable  also 
where  the  substituted  gift  of  per- 
sonal property  is  to  the  heirs  of  the 
body.  Pattenden  v.  Hobson,  22  L.  J. 
Ch.  697,  17  Jurist,  406;  In  re  Stevens, 
L.  R  15  Eq.  110,  114.  In  Newton's 
Tru.sts,  L.  R.  4  Eq.  171,  where  personal 
property  was  given  •'  to  the  heirs  and 
assigns  of  my  sister  A.,  now  deceased."' 
it  was  held  that  the  gift  was  substi- 
tutional, and  devolved  upon  the  jier- 
sonal  representative  of  A.  for  the 
benefit  of  her  next  of  kin.  In  tliis 
case  the  court  said  on  page  173:  "  The 


original  sense  of  tlie  word  is  to  pre- 
vail, and  the  person  who  is  heir  is  to 
take  as  persona  designata;  and  that 
notwithstanding  the  chai-acter  of  the 
property  bequeathed.  But  here,  the 
gift  being  to  the  '  heirs  and  assigns.' 
it  is  impossible  for  the  heir  to  take 
as  persona  designata.  And  when  it 
is  found  that  in  all  the  previous  gifts 
the  testator  has  used  the  words 
'  heirs  and  assigns'  unnecessarily,  the 
conclusion  is  that  his  notion  was  that 
this  was  the  proper  mode  of  limiting 
personal  estate  so  that  it  should  go 
in  the  ordinary  course  of  distribution 
by  law.  Then,  one  of  his  relatives 
being  already  deceased,  he  intended 
to  make  a  gwast-substitutional  gift 
to  those  persons  who  might  repre- 
sent in  law  his  deceased  relative,  pre- 
cisely as  he  had  given  one-seventh 
already  to  each  living  relative,  'his 
(or  her)  heirs  and  assigns.'  " 

1  In  re  Stevens'  Trusts,  L.  R.  15  Eq. 
110,  115. 

-  In  Jeaffreson's  Trusts,  L.  R  2  Eq. 
276,  282. 


§  G20.]  GIFTS    TO    HEIKS    AND    XEXT    OF    KIN.  829 

A.,  first  to  educate  at  their  discretion  the  said  heirs,  and  lastly 
to  pay  to  the  said  heirs,  at  their  respective  ages  of  twenty-one, 
in  such  proportions  as  A.  might  by  deed  or  -will  appoint,''  the 
next  of  kin  took  an  estate  by  purchase,  and  the  words  employed 
did  not  give  A.  an  absolute  interest.  So,  too,  particularly  in 
England,  where  the  principle  of  primogeniture  prevails,  a  di- 
rection that  a  fund  of  personal  property  shall  be  equalli/  divided 
amo7i(j  the  heirs  o/'«j?6/*50?i,  indicates  almost  conclusively  that 
the  next  of  kin  are  meant.^ 

§  iS'lO.  (lifts  of  personalty  to  the  heir  or  heirs  as  persona 
desigiiata. —  It  should  not  be  supposed,  however,  from  the  pre- 
ceding discussion  that  it  is  impossible  or  illegal  for  a  testator 
to  bequeath  personal  property  to  his  heir  or  heirs.  A  bequest 
of  a  raixed  residue  of  real  and  personal  proyerty^  as  distinct  from 
a  gift  of  pure  personalty,  to  the  heir  or  to  the  heirs  of  the  tes- 
tator, will,  as  is  subsequently  pointed  out,  go  to  his  heirs,  tech- 
nically speaking,  and  not  to  his  next  of  kin.  And  as  the  Avord 
"  heirs  "  will,  primarily,  be  usually  presumed  to  have  been  used 
in  a  technical  sense,  if  the  testator  has  given  personal  property 
to  his  heir  or  heirs,  and  there  is  no  expression  in  the  Avill  to 
show  that  the  testator  meant  his  next  of  kin,  the  })erson  or 
persons  who  are  the  heirs  of  the  testator  in  the  technical  sense 
of  the  term  are  permitted  to  take  the  personal  property.  Ac- 
cording to  the  English  rules  of  descent,  under  which  the  prin- 
ciple of  primogeniture  is  firmly  established,  a  disposition  of 
personal  property  alone  to  the  hi^ir  or  to  the  heir  at  law  in  the 
singular,  is  presumed  to  point  out  that  person  who  is  the  heir, 
and  he  takes  as  a  persona  de-sifpiata.-  And  a  gift  of  personal 
propt^rty  to  the  heirs  or  heirs  at  law,  in  the  plural,  or  a  gift  of 
a  mixed  fund  to  such  persons,  particularly  where  a  conversion 
of  personal  property  into  real  property  is  directed  by  the  will, 
goes  to  the  heir  at  law.'     This  restricted  construction  of  the 

'  Low  V.  JjiriU'S.  25  L.  J.  50:^,  2  Jur.  See  also  Ware   v.  Rowland,  where 

(N.  S.)  ;i44,  where  the  direction   in  personal  proi>erty  was  f^iven  to  the 

the  will  was  to  convert  real  and  |>er-  heirs  of  a  person    slian-  and  share 

Winal  pro[HTty  and  to  invest  a  share  alike. 

Kiven  therein  for  the  henehtofa  le^-  -(Jwynne  v.  Murdock,  14  Ves.  488, 

utw!  until  he  should  attain  the  a^e  4HU;  Tetlow   v.  .XshldU.  'JO  L.  J.  Ch. 

of  thirty,   when   he  was    to  receive  M,   15  .lur.  'Jl.'f. 

half  of  it,  t')  employ  it  in  husiness,  ^Do  It^-iiuvoir  v.  Ih-  Hcauvoir,  15  JLL 

and  u[»on  his  de.-ith  the  whole  share  L.  Can.  524,  557,  502,  15  bini.  103. 
to  bo  w^ually  divided  auioug  his  heirs. 


830  I.AW    OF    WILLS.  [§  021. 

^v<H^l  "  lioir "'  to  tho  person  who  is  actually  such  is  invoked  not 
only  in  constrain f^  a  gift  of  a  mixed  fund,  but  sometimes  in 
the  case  of  a  gift  of  pure  personal  property.  Particularly  is 
this  so  where  a  gift  of  personal  property  is  made  to  the  heir 
in  the  singular}  So  where  there  w^as  a  legacy  of  £4,000  ex- 
pressly "A)  rntj  /i<'/;',"  and  the  testator  left  him  surviving  three 
daughters,  the  court  refused  to  depart  from  the  ordinary  sense 
of  the  term,  viewing  it  as  nomen  Gollectivum,  and  the  three  co- 
heiresses had  the  legacy  divided  ecpially  among  them.-  The 
converse  of  this  proposition  is  equally  true ;  for  if  the  testator 
shall  give  personal  property  to  his  heirs,  using  the  word  in  the 
plural,  and  he  shall  leave  only  one  heir,  that  person  will  re- 
ceive the  legacy.'  The  rules  and  principles  which  have  just 
been  stated  are  applicable  in  the  United  States,  modified  by 
the  abolition  of  the  rule  of  primogeniture,  which  is  recognized 
by  the  common-law  canons  of  descent  in  England.  Doubtless 
the  testator  may  dispose  of  his  personal  property  to  those  per- 
sons who  are  technically  his  heirs,  but,  in  view  of  the  fact  that 
in  America  the  heirs  and  the  next  of  kin  of  the  testator  under 
the  statute  are  usually  the  same  persons,  the  question  has  not 
arisen  so  frequently  in  America  as  it  has  in  England,  where 
the  heirs  and  next  of  kin  are  different  persons.  So  if  a  testa- 
tor shall  bequeath  a  legacy  to  Ms  heirs,  and  shall  leave  him 
surviving  two  sons  and  two  daughters,  there  can  be  no  question 
who  is  to  take,  for  each  would  take  equally,  whether  the  word 
"  heirs  "  shall  be  construed  in  its  primary  or  in  its  secondary 
sense.  And  in  all  cases  where  the  word  "heirs"  is  construed 
as  meaning  "  next  of  kin  "  under  the  statute,  the  property  will 
be  distributed  among  the  legatees  j^c;"  stirpes} 

§  621.  Personal  and  real  property  blended  in  a  gift  to  the 
heirs. —  The  word  "  heirs,"  w^hen  it  is  used  in  a  gift  of  the  res- 
idue consisting  of  7'eal  and  personal  property  Mended  togethery 
and  given  either  to  the  heirs  of  the  testator  or  to  the  heirs  of 
another,  will  be  taken  in  its  primary  meaning,  and  the  personal 
property  will  go,  with  the  real  property,  to  those  who  would 

1  Smith  V.  Butcher,  L.  R  10  Ch.  D.  3  pieydell  v.  Pleydell,  1  Peere  Wms. 

113;   Danvers  v.  Lord  Clarendon,  1  748. 

Vern.  35;  Soutligate  v.  Clinch,  27  L.  ^Wood  v.  James,  115  N.  Y.  346,  23 

J.  Ch.  651,  1  Drew.  &  Sm.  228,  4  Jur.  N.  E.  R.  346.     And  see  cases  cited  in 

(N.  S.)  428.  note  1,  page  836,  contra;  In  re  Ash- 

2Mounsey  v.  Blamire,  4  Russ.  384.  ton,  20  W.  X.  C.  41,  19  AtL  R.  699. 


§  022.] 


GIFTS    TO    ilKIIIS    AND    NEXT    OF    KIN. 


831 


take  the  latter  by  descent.^  But  if  money  is  to  be  converted 
before  going  to  the  heir,  the  word  is  hekl  to  mean  statutory 
next  of  kin.- 

§  Q'2'2.  Whetlier  a  husband  or  a  wife  is  included  in  tlie 
word  "heirs." — In  the  absence  of  a  statute  neither  the  hus- 
band nor  the  wife  can  be  regarded  as  the  heir  of  the  other  in 
any  sense.'  In  those  cases  where  the  courts  have  held  that 
the  widow  of  the  testator  was  entitled  to  share  under  a  provis- 
ion for  his  heirs,  or  for  his  next  of  kin,  it  was  so  held  because 
the  statute  entitled  her  to  take  as  such  if  the  testator  had  died 
intestate;*  or  where  in  the  will  the  testator  had  clearly  indi- 
cated that  he  used  the  word  "  heirs,"  either  as  having  the  sense 
of  devisees  or  legatees,^  as  where  he  speaks  of  his  "  heirs  before 
named,"  ®  one  of  whom  is  his  widow ;  or  where  to  exclude  the 
"widow  of  the  testator  from  taking  as  of  a  class  designated  by 
the  word  "  heire  "  would  be  manifestly  contrary  to  his  clearl}"- 
expressed  intention.'^ 


» Clarke  v.  Cordis,  4  Allen  (86  Mass., 
1862),  468,  480;  Lincoln  v.  Aldrich, 
149  Mass.  368,  21  N.  E.  R  671 ;  Swaine 
V.  Burton,  15  Ves.  365.  The  circum- 
stance that  real  property  is  combined 
with  personal  property  in  a  gift  to 
the  heirs,  thougli  not  conclusive  that 
those  who  are  technically  heirs  are 
to  take  as  persona  designata,  fur- 
nishes a  reason  for  such  a  construc- 
tion whiclx  is  not  present  wlien  per- 
sonal property  alone  is  in  question, 
Wingfield  v.  Wingfield.  L.  R.  9  Ch. 
D.  658.  See  also  Wriglit  v.  Atkyns, 
17  Ves.  265,  where  the  gift  was  com- 
posed of  a  blended  residue  to  a  •'  fam- 
ily," which  word  was  construed  to 
be  synonymous  in  meaning  with 
"heir."  Gwyune  v.  Muddock,  14  Ves. 
488,  489  ("U)  my  nighest  heir  at  law 
to  enjoy  tlie  .same");  De  Beauvoir  v. 
De  Beauvoir.  15  Sim.  163,  3  IL  L.  C. 
624,  555.  562;  PnK:tor  v.  Clark,  154 
Mass.  (1^)91),  45;  Lawn-nee  v.  Crane, 
158  Mass.  392. 

2  Kendall  v.  Gloitson,  152  M21.S.S. 
(1891),  457:  White  v.  Stanford.  146 
Hass.  (I'^Sy),  424;  Ijiwrcnce  v.  Crane, 
158  Mass.  392.     In  Tetlow  v.  Ashton, 


20  L.  J.  Ch.  53,  15  Jur.  213,  where  a 
blended  fund  was  given  "  to  the  lieir 
at  law  "  of  ray  family,  tlie  court  said: 
"  The  testator  has  used  words  which 
no  person,  professional  or  unprofes- 
sional, can  misunderstand.  .  .  . 
If  there  were  any  correcting  or  ex- 
planatory context,  the  case  might  be 
different.  I  give  no  opinion  how  the 
case  would  have  stood  if  the  word 
'  Jieirs '  had  been  used  instead  of 
'heir.'"  The  next  of  kin  cannot 
take. 

3  Dodge's  Appeal,  106  Pa.  St.  216. 

*  Ferguson  v.  Stuart,  14  01iio(1846), 
140;  Hascall  v.  Cox,  49  Mich.  (1882), 
435;  Rotch  v.  Long,  169  Maas.  190.  47 
N.  E.  R.  660;  McLeod  v.  McDonnell. 
6  Ala.  (1844),  230,  239;  Gibbons  v. 
Gibbon.s,  40  Ga.  562, 574.  "Where  the 
statute  makes  tlie  wife  an  heir,  slio 
is  included  in  a  gift  to  the  testators 
"lieirs  of  the  full  IjJood."  Gibbous 
V.  Gibbons.  40  Ga,  562,  57L 

5. 4 »(/(',  ?•  6 IS. 

"In  tiic  will.  Kisman  V.  Poindex- 
ter,  52  Iiid.  10 1. 

^  Luwn'iic*^  v,  Crano  (Mass,,  1890), 
33  N.  E.  R.  605. 


S32  ].A\V    OK   AVILI.S.  [§  023. 

The  fact  that  the  testator  h;is  made  a  substantial  testament- 
ary [X'ovision  lor  his  widow  in  lieu  of  (htwer,  and  then  has 
deviseil  all  the  resiilue  to  *'///.y  //' //-..v,"  may  raise  a  strong  pre- 
sunii)tion  that  he  does  not  intend  she  shall  take  as  one  of  his 
heirs.'  A  devise  to  the  heirs  '■'■of  the  hody  of  A.,''-  or  a  gift  to 
the  next  of  kin  '•^descended  from  A.,"  excludes  the  wife  or  hus- 
band of  A.  by  the  express  terms  of  the  gift.^  In  the  state  of 
New  York,  a  devise  to  the  heirs  of  M.  "  in  such  shares  as  they 
would  take  if  M.  had  inherited  and  died  intestate,"  does  not 
include  M.'s  widow;  ^  nor  does  a  residuary  devise  to  be  divided 
among  "  my  (the  testator's)  heirs  or  next  of  kin  as  it  would  be 
by  the  laws  of  the  state,"  include  the  widow  of  the  testator,* 
So  in  England  a  devise  of  real  estate  to  the  "  heirs  of  the  tes- 
tatrix" does  not  include  a  husband  who  survives  her.'' 

§  623.  Whether  heirs,  when  purchasers,  take  per  stirpes 
or  per  capita. —  It  is  often  difficult  to  determine  in  the  case 
of  a  devise  to  the  heirs  of  A.,  when  they  take  as  purchasers, 
whether  they  take  under  the  will  in  the  same  proportions  as 
they  would  take  by  descent,  i.  e.,  per  stirpes;  or  whether  they 
are  to  take  as  living  members  of  a  class,  i.  e.,pcr  capita.  The 
intention  of  the  testator,  whenever  it  is  expressly  stated,  is  con- 
trolling. If  he  directs  a  division  of  property  among  his  own 
heirs  or  the  heirs  of  A.  ^'- share  and  share  alike^''  "  equally^''  ^^  in 
equal  shares,''^  ^^pa7'ts^^  or  ^^ proportions^''^  or  used  other  words 
which  indicate  an  equality  of  division,  those  persons  who  are 
to  take  as  heirs  will  be  indicated  by  the  common-law  or  stat- 
utory rules  of  descent,  though  the  proportion  which  each  is  to 
take  must  be  determined  by  this  expression  of  the  testator's 
intention.     They  will  take  per  capitaJ    But  it  has  been  held 

1  Doody  V.  Higgins,  2  K.  &  J.  729,  *  Murdock  v.  Ward,  67  N.  Y.  387, 
9  Hare,  32:  Lord  v.  Bowne,  25  Mich,  followed  in  Piatt  v.  Nickle,  32  N.  E, 
185,  188.  190:  In  re  Peppitt,  36  L.  T.  R  1070,  137  N.  Y.  106,  33  N.  E.  R  744. 
(N.  S.)  500;  Welsh  V.  Crater,  32  N.  J.  5  Luce  v.  Dunham,  69  N.  Y.  63; 
Eq.  177.  Cushman  v.  Horton.  59  N.  Y.  151. 

2  In  re  Jeaffreson's  Trusts,  L.  R.  2  ^  In  re  Walton's  Trusts,  8  De  Gex, 
Eq.  276,  282.  M.  &  G.  174:  Gardenshire  v.  Hinds, 

3  Where  the  widow  is  by  the  stat-  1  Head  (38  Tenn.,  1858),  402;  Peet  v. 
ute  entitled  to  take  as  one  of  the  Commerce  &  E.  S.  Ry.  Co.,  70  Tex. 
next  of  kin  of  her  husband,  she  may  522,  8  S.  W.  R.  203;  Ivins' Estate,  106 
claim  imder  a  gift  of  personal  prop-  Pa.  St.  176. 

erty  to  her  husband's  heirs.  Fergu-  "  De  Laurencel  v.  De  Boom,  67  CaL 
son  V.  Stuart,  14  Ohio,  140.  See  also  (1885),  362;  Kelley  v.  Vigas,  112  IlL 
Peacock  v,  Albin,  39  Ind  25.  (1885),  242,  56  Am,  R  235;  Best  v. 


§  623.]  GIFTS    TO    UEIKS    AND    NEXT    OF    KIN.  833 

that  the  heirs  of  the  testator  woukl  take  jper  stirpes,  ^vhere  he 
provided  that  his  estate  shoukl  be  divided  in  equal  shares  to 
his  heirs.^  The  direction  to  divide  propert}^  equally  among 
heirs  or  other  legatees  may  be  so  far  modified  by  a  subsequent 
clause  directing  its  division  per  stirpes  that  the  provision  for 
equality  of  division  will  be  wholly  nullified.  But  the  presump- 
tion is  always  in  favor  of  an  equality  of  division.^  Some  diffi- 
culty may  be  experienced  in  determining  the  application  of 
the  words  pointing  out  an  equality  of  distribution  or  division. 
A  provision  for  A.  and  B.  and  the  heirs  of  C.  and  D.,  to  be  di- 
vided "  equally  among  them^''  is  artibiguoiis,  and  the  question 
arises,  which  can  only  be  answered  by  construing  the  whole  will, 
Does  the  testator  mean  to  direct  an  equality  of  division  among 
the  stirpes  or  among  the  individuals  ?  *  The  rule  of  a  division 
or  partition  per  capita,  indicated  by  a  direction  for  an  equal  di- 
vision, is  not  only  applicable  to  a  division  among  the  heirs  of  one 
person  mentioned  by  name,  but  is  also  a2:)plicable  to  the  case  of  a 
division  among  the  heirs  of  two  or  more  persons,  some  of  whom 
are  dead,  though  the  heirs  may  stand  in  different  degrees  of 
descent  from  their  common  ancestor.  Those  persons  who,  at 
the  death  of  the  testator,  are  the  heirs  of  each  of  the  several 
ancestors  who  are  mentioned  in  the  will,  are  regarded  as  con- 
stituting a  separate  class  of  devisees,  irrespective  of  the  fact 
that  they  are  related  more  or  less  remotely  to  the  common  an- 
cestor.* So  where  a  testator  devised  land,  after  a  life  estate 
given  to  his  Avife,  in  remainder  to  his  heirs  and  her  heirs,  and  at 
h>:r  death  her  heirs  were  sixteen  in  number,  representing  three 

Farris.  21  III  App.  49;  Follansbee  v.  1899),  50  Pac.  R.  520;  Walker  v.  Web- 

Follansljee,  7  App.  D.  C.  282;  Dukes  stor,  93  Va.  277,  28  S.  E.  R.  570. 

V.  Faulk,  37  S.  C.  255,  10  S.  E.  R.  122;  i  In  re  Hock's  Estate,  20  Atl.  R. 

Barton  v.  Tuttle,  62  N.  H.  558,  500;  CIO,  154  Pa.  St.  417,  32  W.  N.  C.  270. 

Boiline  V.  Brown,  42  N.  Y.  S.  202;  -'Fields  v.   Fields,  93  Ky.  019,  20 

Bur^in  v.  Patten,  5  Jones'  Eq.  (N.  C,  S.  W.  R.  1042. 

IHtW  ,   420;    Ward   v.   Stow,   '^   Dev.  *  See  In  re  Asliliurncr's  Estate,  14 

(N.  C.)  I":q.  509;  Harris  v.  Philpot,  5  Pa.  Co.  Ct.  R.  59.  2  Pa.  Dist.  M.  H2S.  23 

Ired.  Eq.  (40  N.  C,  184S),  324,  328;  Le-  W.  N.  C.  251;  allirnied  in  2«  Atl.  R. 

macks  v.  Glover,  1  Rich.  Eq.  (S.  C.)  801,  159  Va.  St.  545. 

Ill;  Allen   v.   Allen,   13  S.   C.   512;  Mlod^fs  v.  Phelps,  05  Vt.  302,  20 

OrltH  Appeal),  35  Pa.  St.  207;  Free-  Atl.   R.  025;  Ward  v.  Stow,  2  Dev. 

man  v.  Knif,'iit,  2  Ired.  Eq.  (37  N.  C,  Eq.  (10  N.  C,  1830),  509;  Harris'  Es- 

1HJ2;.  170;  Tuttle  v.  Puitt,  08  N.  C.  tate,  74   I'a.  St.    152;  C<»Kan  v.    Mo 

5J3;  Rams5iy   v.  Stepiien.son  (Oroy.,  Cabo,  52  N.  Y.  S.  48,  23  Misc.  R  739. 
53 


834  LAW   OF   WILLS.  [§  024. 

stocks,  ami  his  heirs  then  living  were  fonrtoen,  representing 
four  stocks,  the  heirs  of  both  the  testator  and  of  his  widow 
were  taken  together  as  one  class,  and  the  distrilnition  was 
made  among  the  thirty  heirs  per  capita}  The  fact  that  the 
testator  mentions  the  various  stocks  or  ancestors  from  which 
the  heirs  are  derived  respectively  does  not  overcome  the  pre- 
sumption of  an  equality  of  division  arising  from  a  direction  to 
divide  among  heirs  sliare  and  sliare  alike? 

§624.  When  a  distribution  per  stirpes  is  favored. —  In 
very  many  cases,  where  the  will  is  silent  as  to  the  mode  of  di- 
vision, heirs  will  take  as  a  class ^^c;'  st'upes.  This  is  usually  the 
case  where  the  ancestor  is  deceased,  and  the  word  "  heirs  "  is 
used  by  the  testator  in  its  primary  and  technical  sense.  This 
rule  is  al\va3''s  recognized  in  the  case  of  a  devise  to  the  heirs  of 
the  testator,  in  the  absence  of  an  express  direction  requiring 
an  equality  of  division,^  and  sometimes  even  where  there  is 
such  a  direction.'*  Thus,  in  a  case  decided  in  Massachusetts,* 
the  testator  ordered  that  the  residue  of  his  estate  should  "  be 
equally  divided  among  those  persons  who  shall  be  my  legal 
heirs  at  the  time  of  my  decease;  and,  in  the  distribution,  I  di- 
rect that  the  children  of  my  sisters  A.  and  B.  shall  share  the 
same  equally  numerically."  The  testator  had  one  sister  A., 
who  was  alive  and  had  seven  cliildren,  and  another  sister  B., 
who  was  deceased,  leaving  two  children.  The  court  directed  a 
division  among  the  heirs  j9<?r  stirpes.  The  living  sister  of  the 
testator  took  one-half,  and  the  children  of  the  deceased  sister 
the  other  half  equally  between  them.     The  presumption  is  al- 

1  Bisson  V.  West  Shore  R.  Co.,  38  366.  Where  a  testator  leaves  his  es- 
N.  E.  R.  101,  143  N.  Y.  125.  tate  to  liis  two  brothers  for  life,  with 

2  In  re  Scott's  Estate  (Pa.  Supp.),  29  remainder  to  be  "  divided  between 
AtL  R,  877,  163  Pa.  St.  165,  35  W.  N.  my  heirs  at  law,"  the  heirs,  consist- 
C.  403.  ing  of  cliildren  and  grandchildren  of 

3  Houghton  V.  Kendall,  7  Allen  (89  deceased  brothers  and  sisters,  take 
Mass.,  1863),  72,  77;  Rand  v.  Sanger,  per  stirpes,  AwtX  not  per  capita.  John- 
115  Mass.  124,  128;  Eyer  v.  Beck,  70  son  v.  Bodine  (Iowa,  1899).  79  N.  W.  R. 
Mich.  179.  38  N.  W.  R.  20;  Lott  v.  348. 

Thompson,  36  S.  C.  (1891).  38.  15  S.  E.  '« In  re  Swinbnrne,  16  R.  I.  208.  14 

R  278;  Ruggles  V.  Randall,  70  Conn.  Atl.    R.   850;    Alston's  Appeal   (Pa., 

44.  38  Atl.  R.  885:  Jackson  v.  Alsop,  1887),  11  Atl.  R.  366;  Kellerman  v. 

34  Atl.  R.  1106,  67  Conn.  249;  Thomas  Vigas,  112  111.  242. 

V.  Miller,  161  111.  60,  43  N.  E.  R.  848;  SRand   v.   Sanger,   115  Mass.  124, 

Alston's  Appeal  (Pa.,  1887),  11  Atl.  R.  128. 


§   C)24:.]  GIFTS    TO    HEIKS    AXD    XEXT    OF    KIX.  835 

ways  in  favor  of  a  division  ^;^7'  stirjxs,  if  the  gift  is  to  the  /tci/'s 
of  two  or  more  persons,  or  to  two  persons  and  the  heirs  of  others, 
and  anv  of  these  ancestors  are  livins;  at  the  date  of  the  dis- 
tribution.  A  gift  to  the  heirs  of  A.  and  to  the  heirs  of  B.  shows 
on  its  face  a  clear  intention  to  make  an  equal  division  between 
the  heirs  who  are  descended  from  each  ancestor  whose  name  is 
mentioned.  In  such  a  case,  or  in  the  case  of  a  devise  to  A.,  Avho 
is  a  living  person,  and  also  to  the  heirs  of  B.,  who  is  deceased, 
a  fund  or  property  will  be  divided  into  as  many  shares  as  there 
are  ancestors  named,  and  the  heirs  of  those  who  are  dead  will 
take  among  themselves  the  share  which  represents  their  an- 
cestor, per  stirpes} 

So,  where  land  was  to  be  divided  among  the  heirs  of  A.  and 
the  heirs  of  B.  after  the  death  of  the  wife  of  the  testator,  the 
heirs  of  A.  and  B.  living  at  that  date,  irrespective  of  their 
stocks,  will  take  the  \'iivAp>er  stiypes;  and  this  presumption  is 
favored  by  the  fact  that  the  testator  had  given  life  estates  re- 
spectively to  the  ancestors  who  are  named,  with  a  remainder 
to  their  respective  heirs.^  A  similar  rule  requiring  a  division 
jyer  stirpes  may  be  invoked  where  the  property  is  devised  to 
be  divided  among  the  children  of  the  testator  or  their  heirs; " 
or  between  the  widow  of  the  testator  and  the  heirs  of  his 
mother;*  between  the  heirs  of  A.  and  the  heirs  of  my  brother 
and  sister;^  to  the  heirs  of  "wy /«?;(?"  husband  and  my  own 
heirs  equally;^  to  A.,  B.  and  C.  and  the  heirs  of  D.  equally ;'' 
to  the  legal  heirs  of  the  testator,  excepting  his  son,  who  is 
specifically  named  ;^  to  A.  and  B.  for  life,  respectively,  and,  on 

iThus,  in  the    case  of  a  gift  of  1834),  L.  430;  Taylor  v,  Fauver  (Va., 

money,  to  be  divided  between  A.  and  1H97),  28  S.  E.  R.  817;  Millers  Appeal, 

the  heirs  of  R  at  the  death  of  the  32  Pa.  St.  (18.")9).  323. 

testator,  and  A.  is  living,  he  will  take  *  Perkins  v.  Stearns.  1G3  Mass.  247, 

one-half,  and  the  other  half  will  \vd  39  N.  E.  R  lOIG. 

divided  pi:r  cjipHa  amongst  the  heirs  *  Holbrook  v.  Harrington  (H2  Mass., 

of  B.,  [irovided  they  are  descended  1800),  16  Gray,  102.  104;    Burgin  v. 

from  V>.  in  tlie  same  degre(!,  hwt  "per  Patt<in,  5  Jones'  (N.  C)  Efj.  420. 

stirjien  if  dfs(r«'nded  in  dUr<!rent  de-  •^UnsK  v.  Kiger,  43  W.  Va.  402,  410, 

green.     Iloxton  v.  (JriiTitlis,  18  (Jratt.  20  S.  E.  H.  19:!. 

(Va.).')74;  Ufjonie  v.  Counter,  0  N.  J.  "Ricks    v.    Williams,    1    Dev.    Eq. 

Law,  111.  (N.  (;.)1;  liaicoiii  v.  Ilayncs,  1  I  All.ii 

'■«  l'r(!.sU)U   v.   liraiit,  10  S.  W.  R.  78,  (90  .Mass.,  !.^t;7),  204.  205. 

06  Mo.  .").V2.  >*  Rand   v.  Sangi-r,  ll.i  Ma.ss.  (1874), 

'iJrJtUjn  V.  Johnson,  2  Hill  (S.  C,  121,  128. 


83G  LAW  OF  WILLS.  [§§  G25,  626. 

the  (loath  of  cither  of  tliem,  liis  or  licr  share  to  bo  divided 
among-  liis  or  her  lieirs.' 

§  6*J5.  Statutory  inodifiojition  of  the  laws  of  descout. —  Tho 
interest  or  estate  which  a  devisee  takes  under  the  will,  if  it  is 
immediate  and  vested,  and  if  he  answers  to  the  descriptioji  of 
an  heir,  at  the  death  of  the  testator,  is  vested  in  him  at  and  hj 
the  death  of  the  testator^  and  his  title  is  merely  conih-med  and 
strengthened  by  probate  of  the  will.  Hence,  as  a  vested  right 
or  interest,  his  title  is  entirely  beyond  legislative  control,  and 
may  not  be  diminished  or  abrogated  or  in  any  wise  impaired 
by  statutory  enactment.  For  this  reason  no  subsequent  change 
in  the  law  of  descent  which  is  the  result  of  statutory  enactment 
will  prevent  those  persons  wdio,  at  the  date  of  the  death  of  the 
testator,  answer  to  the  description  of  heirs,  from  taking  their 
estates,  where  the  devise  vests  immediately.  And  where  at 
the  time  of  the  death  of  the  testator  his  w^ife  is  not  an  heir  ac- 
cording to  the  then  existing  statute,  she  will  not  take  as  such, 
though  by  a  subsequent  statute  she  is  made  an  heir.^ 

§  6*26.  Next  of  liiii  siinpliclter  includes  only  nearest  blood 
relations. —  Much  divergence  of  opinion  existed  in  the  early 
cases  as  to  the  construction  of  the  words  "next  of  kin."  If  the 
testator,  in  a  gift  to  the  next  of  kin,  refers  expressly  or  by  im- 
plication to  the  statute  of  distribution,  he  will  be  conclusively 
presumed  to  mean,  by  next  of  kin,  those  persons  only  who  take 
personal  property  under  that  statute.  On  the  other  hand,  where 
the  gift  is  simjyhj  to  the  next  of  kin,  without  any  reference  to 
the  statute,  the  rule  now  is  that  the  testator  means  his  nearest 

iKing  V.  Savage,  121  Mass.  (1876),  of  the  testator  to  "his  heirs"  Z.  and 
303,  306;  Daggett  v.  Slack,  8  Met.  R.,  and  the  remaining  half  to  the 
(Mass.)  450,  453;  Tillinghast  v.  Cook,  "heirs  of  T."  and  her  deceased  hus- 
9  Met.  (Mass.)  143,  147;  Forrest  v.  band,  namely,  "M.,  S.  and  D.,"  re- 
Porch,  45  S.  W.  R.  671, 100  Tenn.  391;  quires  a  division  per  stirpes,  and  on 
Bassett  v.  Granger,  100  Mass.  (1868),  only  one  of  tho  heirs  of  the  husband 
348,349.  In  a  case  wliere  the  word  who  were  named  having  survived  the 
"  heirs "  is  used  as  an  equivalent  of  testator,  he  took  all.  Swallow  v. 
next  of  kin  in  a  gift  of  personal  prop-  Swallow  (Mass.,  1896),  44  N.  E.  R.  133. 
erty,  the  next  of  kin  will  take  jjcr.s'^8r-  sjn  i-e  Sweuson's  Estate,  55  Minn. 
W's.  according  to  the  statute  of  distri-  300,  56  N.  W.  R.  1115;  Lincoln  v. 
i>ution.  Woodward  v.  James,  23  N.  E.  Aldrich,  21  N.  E.  R.  671,  149  Mass. 
R.  150  a889),  115  N.  Y.  43,  46.  But  368.  So  also  Wood's  Appeal,  18  Pa. 
see  contra,  In  re  Ashton,  19  Atl.  R.  St.  478;  Aspdeu's  Estate,  2  Wall  Jr. 
699,  26  W.  N.  C.  41  (1890),  134  Pa.  St.  ,  C.  C.  368. 
390.    A  devise  of  half  of  the  estate 


§  C2G.] 


GIFTS   TO    HEIES    AXD    NEXT   OF    KIN. 


S3T 


relations.  He  means  those  persons  who  are  most  nearly  re- 
lated to  him  by  consanguinity.^  Thus,  suppose  a  testator  shall 
leave  him  surviving  two  brothers,  and  the  children  of  another 
brother  who  is  deceased.  The  question  arises,  who  are  to  take 
under  these  circumstances  as  next  of  kin?  The  rule  of  the  civil 
law  is  employed  in  determining  who  are  the  next  of  kin,  and 
this  law  traces  descent  from  the  testator  as  the  proj)osit us,  and 
not  from  the  common  ancestor.*  The  brothers  are  equally  re- 
lated to  the  testator  in  the  first  degree,  the  nephews  and  nieces 
in  the  second ;  and  the  former  take  as  nearest  of  kin,  where  no 
reference  is  made  to  the  statute,  while  the  latter  are  excluded.'' 
Where  several  persons  answer  to  the  description  "  next  of 
kin,"  and  are  related  to  the  testator  or  other  proj)ositus  in  equal 
degrees,  they  take,  at  common  law,  as  joint  tenants.  This  was 
so  decided  where  a  gift  to  the  next  of  kin  was  construed  to  go 


1  See,  generally,  5  L.  R.  A.  GOO.  15 
L.  R  A.  300. 

2  Cooper  V.  Denison.  13  Sim.  290. 

3  Svvasey  v.  Jacques,  144  Mass.  137, 
138,  4  N.  E.  R.  135;  Harraden  v. 
Larrabee,  113  Mass.  431;  Leonard  v. 
Haworth  (Mass.,  1898),  15  N.  E.  R.  7; 
Wetter  v.  Walker,  G2  Ga.  145;  Fargo 
V.  Miller,  22  N.  E.  R  1003,  150  JIass. 
225;  Keniston  v.  Mayhew,  169  Mass. 
160.  47  N.  E.  R  612;  Jones  v.  Oliver. 
3  Ired.  Eq.  369,  371;  Simmons  v. 
(Jooding,  5  Ired.  Eq.  (10  N.  C,  1848), 
382,  390;  Richmond  v.  Burroughs,  63 
N.C.  (18691,  242,  245,  646;  Harrison  v. 
Ward,  5  Jones'  Eq.  (N.  C.)  236,  240. 
Tlie  English  cases  in  wliich  the  term 
"next  of  kin"  was  construetl  to 
mean  statutory  next  of  kin  are 
Phillips  V.  Garth,  3  Bro.  C.  C.  64; 
Stamp  V.  Cooke,  1  Cox  Cli.  R  234; 
Hinckley  v.  Manlarens,  1  My.  &  K. 
'J7,  31.  The  question  usually  arose 
Ijftween  the  living  hrotlu-rs  and  sis- 
ters of  the  testat(jr  ami  tlio  i-hildrcn 
of  brotlu-rs  and  sisters  \vlu>  were  de- 
i-viist'A.  The  statute  22  and  23  Car.  II, 
<  h.  10,  and  29  Car.  II,  ch.  30,  gave  the 
children  of  a  deceased  hrotluT  or 
sister  of  an  intestiite  the  ri^ht  to 
t;ik«-  iMTsonul  ijrojHsrty  hy  repp-^'"'  i- 


tion.  In  Elmsley  v.  Young,  2  Mylnes 
&  K.  82,  870,  a  trust  was  created  for 
the  benefit  of  such  persons  who 
should  be  the  next  of  kin  of  A.  at  his 
death.  It  was  claimed  by  a  brother 
and  a  nephew  of  A.  The  court,  ex- 
cluding the  nephew,  gave  the  whole 
fund  to  the  brotiier.  This  construc- 
tion has  been  followed  in  Withy  v. 
Mangles,  4  Beav.  358,  10  CI.  &  Fin. 
215,  8  Jurist,  69;  Baker  v.  Gibson,  12 
Beav.  101;  Dugdale  v.  Dugdale,  11 
Beav.  402;  Garrick  v.  Lord  Camden, 
14  Ves.  372;  Smith  v.  Campbell, 
George  Cooper,  275;  Lucas  v.  Brantl- 
reth.  28  Beav.  274, 278;  In  re  McVicar, 
17  W.  R.  832,  L.  R.  1  P.  &  D.  r)7 1,673; 
Boys  v.  Bradley,  10  Hare,  389.  396; 
Halton  V.  Foster,  L.  R  3  Ch.  505,  507, 
16  W.  R.  645,  683;  Avison  v.  Simi>- 
son,  Joh.  43,  7  W.  R.  277;  Wimbles  v. 
Pitclier  (1.S06),  12  Ves.  433  (where  a 
gift  to  "  next  of  kin  in  ecpial  degree  " 
was  construed  to  exclude  representa- 
tives claiming  under  the  statute). 
See,  also  sustaining  (h»!  K'-neral  rulo 
of  construction,  Richardson  v.  liich- 
ardsoii.  14  Sim.  520,  611;  Brandon  v. 
liraiiilon.  3  Sw.  312.  31H,  :j  My.  A:  K. 
HV!;  llarriH  v.  Newton,  25  \V.  R  22H, 
:!6  1^  T.  (N.  S.)  173,  16  L.  .1.  Ch.  1).  268. 


83S 


LAW    OF    ■WILLS. 


[§  627. 


to  the  father  and  the  children  of  the  testator,  wlio  were  his 
next  of  kin  at  the  civil  law.^  As  a  consequence  of  this  rule  of 
construction,  by  which  the  term  "next  of  kin"  shnjdlciter  is 
not  regarded  as  synonymous  with  distributees  under  the  stat- 
ute of  distribution,  all  Avho  are  eijually  related  to  a  common 
j)/'oj)osf'fuft  will  take,  thoui^h  sotne  of  them  could  not  take  under 
the  statute.  Thus,  where  the  testamentary  provision  is  for 
the  next  of  kin  shnj}?!/,  and  the  jn^oposltus  has  died  leaving  a 
father,  a  mother  and  also  a  child,  all  of  Avhom  are  of  course 
related  to  him  in  equal  degrees  of  consanguinity,  they  will 
share  equally;  though,  under  the  statute,  the  child  would  have 
taken  all  as  a  sole  distributee.- 

§  627.  Construction  of  the  words  "  next  of  kin  "  when  the 
statute  of  distribution  is  referred  to. —  The  effect  of  a  gift  to 
the  next  of  kin  simjMciter,  and  a  gift  to  the  next  of  kin  witii 
some  reference  to  the  statute  of  distribution,  is  very  different. 
In  the  former  case,  as  we  have  seen,''  those  av!io  are  related  by 
blood  in  equal  decrees  take  to  the  exclusion  of  those  who  claim 
solely  by  representation ;  but  in  the  latter  case  it  is  well  set- 
tled that  all  those  take  who  would  take  jyersonal  projyerty  under 


1  With}'  V.  Mangles,  4  Beav.  358,  10 
CI.  &  Fin.  215,  8  Jurist,  69.  In  New 
York  and  New  Hampshire  the  Eng- 
lish rule  that  a  gift  to  next  of  kin 
simpUciter  means  the  nearest  of 
blood,  and  not  distributees,  has  been 
repudiated.  Slosson  v.  Lynch,  28 
How.  Pr.  (N.  Y.,  1864),  417;  Murdock 
V.  Ward,  67  N.  Y.  (1876),  387,  391; 
Keteltas  v.  Keteltas.  72  N.  Y.  (1878), 
312;  Tillman  v.  Sullivan.  63  How. 
Pr.  (N.  Y.)  361.  95  N.  Y.  27;  Pinkham 
V.  Blair,  57  N.  H.  226,  244;  Varrell  v. 
Wendell,  20  N.  H.  431. 

nVithy  V.  :Mangles,  4  Beav.  358. 
In  this  case  the  court  said:  "All 
writers  on  the  law  of  England  ap- 
pear to  concur  in  stating  that,  in  an 
ascending  and  descending  line,  the 
parents  and  children  are  in  equal 
degree  of  kindred  to  the  proposed 
person;  and  I  think  that,  except  for 
the  purposes  of  administration  and 
distribution  in  cases  of  intestacy,  and 


except  in  cases  where  tlie  simple  ex- 
pression may  be  controlled  by  the 
context,  the  law  of  England  does 
consider  them  to  be  in  an  equal  de- 
gree of  consanguinity.  The  law  of 
England  gives  a  preference  to  the 
child  over  the  parent  in  distribution; 
but  I  think  we  cannot  therefore 
conclude,  with  respect  to  every  dis- 
tribution of  property,  made  in  the 
words  '  to  give  the  same  to  persons 
equally  next  of  kin,'  the  parents  are 
to  be  held  moi'e  remote  than  the 
child."  As  the  relationship  is  deter- 
mined by  the  rules  of 'the  civil  law. 
relatives  of  the  half-blood  are  next  of 
kin  to  the  same  extent  as  those  of  full 
blood.  Thus,  all  a  man's  brothers 
and  sisters  are  his  next  of  kin,  though 
they  may  not  have  had  the  same 
parents.  Coiton  v.  Schrancke,  1  Mad- 
dock  (1815),  45;  Grieves  v.  Rawley, 
10  Hare,  63. 
KAnte,  §  626. 


§  027.] 


GIFTS    TO    HEIRS    AND    NEXT    OF    KIN. 


839 


the  statute  of  distrihutlon  in  case  of  an  intestacy.  This  may  in- 
clude some  persons  who  would  take  as  blood  relations  and  ex- 
clude others.  It  is  sometimes  important  to  determine  what 
words  shall  constitute  a  reference  to  the  statute.  It  has  been 
held  that  where  the  testator  speaks  of  his  next  of  kin  as  "  if  he 
had  died  intestate,"  or  as  "  in  case  of  intestacy,"  or  according 
*•  to  the  statute  of  distribution,"  he  means  the  next  of  kin  under 
the  statute.  AVhere  he  thus  describes  them,  and  does  not  at 
the  same  time  expressly  indicate  that  they  are  to  take  in  equal 
shares,  the  reference  to  the  statute  will  not  only  determine  who 
are  to  take,  but  how  and  in  what  proportions  they  are  to  take. 
In  such  event  the  statutory  next  of  kin  will  take  as  in  intestacy; 
that  \^,per  stirpes^  by  representation  and  as  tenants  in  common.* 
If  there  is  no  reference  to  the  statute,  the  next  of  kin  will 
take  as  joint  tenants.^  "Where  an  equal  division  among  statu- 
tory next  of  kin  is  expressly  directed,  they  will  take  j?^;*  capita, 
and  not  per  stirpes  as  under  the  statute.'  If  the  gift  is  to  tho 
next  of  kin  according  to  the  statute,  equally  in  shares,  the  per- 
sons answering  that  description  will  take^^^;'  capita} 


1  In  re  Thompson  s  Trust,  L.  R.  9 
Cb.  D.  607;  Jacobs  v.  Jacobs,  16  Beav. 
ooT,  .jGO:  Lewis  v.  Morris,  19  Beav.  34, 
37:  Ranking's  Settlement.  L.  R  6  Eq. 
601 :  Mattison  v.  Tanfield.  3  Beav.  131, 
132;  Markbam  v.  Ivatt,  20  Beav.  579; 
AVutt  v.  Watt,  3  Ves.  244;  Bailey  v. 
AVri^'lit.  18  Ves.  49:  Hinckley  v.  Mac- 
Larens,  1  Mylne  &  K.  27,  31;  White 
V.  Springett.  L.  R.  4  Ch,  300;  Hougii- 
ton  V.  Kendall,  7  Allen  (Mass.),  72, 77; 
Horn  V.  Coleman,  1  Smale  &  Gif.  169; 
Martin  v.  Glover,  1  Collyer.  269.  272; 
Bo«jth  v.  Vicars,  1  Coll.  0;  Phillips  v. 
Garth,  3  Bro.  C  C.  64;  Coo|)er  v.  Can- 
non, 1  Fliil.  Eq.  (N.  C,  1867),  83,  84; 
Jones  V.  Oliver.  3  Ired.  Eq.  (38  N.  C, 
1844;.  369.  371;  Rook  v.  Attorney-Gen- 
enil,  31  Beav.  313  (1862);  Redmond  v. 
BurrougLs,  63  N.  C.  212,  24."*;  Sim- 
mons v.  Gofjding,  0  Iru<l.  E<i.  (40  N. 
C;  ;i82,  300. 

2  Walker  v.  Maniuis  of  Camden,  16 
fiim.  i<29. 

'.Sfiidder  v.  Van  Arsdale,  12  N.  J. 
E«i.  109,  113;  Thouia.s   v.  Hole,  Cas. 


Temp.  Tal.  251;  Butler  v.  Stratton.  3 
Bro.  C.  C.  367;  Blackler  v.  Webb,  3 
P.  Wms.  383.     See  ante,  %%  623,  624. 

4  Mattison  v.  Tanfield.  3  Beav.  131, 
132,  133.  A  mere  reference  to  legal 
next  of  kin  is  not  a  reference  to  next 
of  kin  according  to  the  statute. 
"Legal  next  of  kin"  means  next  of 
kin  lawfully  born.  Harris  v.  New- 
ton, 25  W.  R  228,  229,  37  L.  T.  (N.  S.) 
173,  44  L  J.  Ch.  D.  268.  Tiie  circum- 
stance that  a  gift  to  statutory  next 
of  kin  Ls  to  them  as  tenants  in  com- 
mon does  not  alone  entitle  them  to 
taM.e  per  capita.  ^lattison  v.  Tanfield, 
3  Beav.  131,  132;  Lewis  v.  Morris.  W) 
Beav.  34,  37.  Contra,  Richardson  v. 
Richardson,  14  Sim.  526.  A  limita- 
tion to  the  next  of  kin  of  A.,  who  is 
a  marrietl  woman,  after  her  death 
"as  if  she  had  died  intestate  and  iin- 
married,"  means  Jis  if  she  had  died 
irilhout  leariiitj  a  hiisltniiil:  for  if 
a  testator  meant  by  "uumarri«'d" 
never  hariin/  been  married,  a  child  (if 
a  woman  wiio  was  married  and  sur- 


840  LAW  OF  WILLS.  [§  628. 

§  0'2S.  Next  of  kill  specifically  (Icscribcd  as  of  a  particular 
name  or  sex  —  (wifts  to  worthy  next  of  kin. —  The  testator 
may  expressly  pvel'er  his  next  of  kin  of  any  particular  chiss, 
provided  the  chiss  of  persons  who  arc  to  be  favored  is  not  sa 
vaguely  and  indefinitely  described  that  the  gift  is  void  for  the 
uncertainty  of  the  beneficiaries.  A  provision  for  the  next  of 
kin  who  are  "  w  need  of  assistance,''^  or  Aviio  are  necessitous,  with 
a  power  of  selection,  would  undoubtedly  be  valid. ^  But  a 
gift  to  the  next  of  kin  of  A.  who  are  ivorthy,  or  according  to 
their  deserts,  w^ould  certainly  be  invalid  for  the  uncertainty  of 
the  persons  intended.-  Gifts  to  male  next  of  kin  have  been  sus- 
tained. But  a  person  who  happens  to  be  included  in  the  terms 
of  a  devise  to  next  of  kin  ex  parte  materna  is  not  deprived  of 
his  gift  merely  because  he  happens  to  be  next  of  kin  ex  par^te 
paterna  also.'  Where  a  gift  was  made  to  the  testator's  "next 
of  kin  by  the  surname  of  Crump,  living  at  the  death  of  ^,,"  it  was 
held  that  the  legatees  need  not  answer  to  hoth  requisites;  but 
that  a  lady  by  the  name  of  Carpenter,  whose  maiden  name  was 
Crump,  and  who  was  the  sole  next  of  kin  at  A.'s  death,  should 
take.  The  court  regarded  the  qualification  of  the  surname  as 
equivalent  to  the  stock  or  family  of  Crump.*   The  term  "  nearest 

vived  her  husband  would  be  exclurled  SFj-fi^rJer  v.  Frazier,  2  Lei^h  (Va.> 

from  the  class  of  her  next  of  kin.  642.  644. 

Day  V.  Barnard,  1   Dr.  &  Sm.  351;  ^gay  v.  Creed,  5  Hare,  580;  Gundry 

Halton  V.  Foster,  L.  R.  3  Ch.  App.  v.  Pinniger  (1851),  14  Beav.  94,  99,  1 

505;  Clarke  v.  Colls,  9  H.  L.  Cases,  De  Gex,  Mac.  &  G.  502. 

651:  In  re  Webber,  17  Sim.  221.    The  <  Carpenter  v.  Bott,  15  Sim.  609. 

statutes  22  and  23  Car.  II,  c.  30,  29  See  also  Pyot  v.  Pyot,  1  Ves.  335; 

Car.  II,  c.  30,  provided  that  the  estate  Leigh  v.  Leigh,  15  Ves,  92;  Doe  v. 

of  an  intestate  shall  go  one-third  to  Plumptre,  3  Barn.  &  Aid.  474:  ante, 

his  widow  and  the  balance  equally  g  605.     In  Boys  v.  Bradley,  10  Hare, 

to  his  children,  or,  if  dead,  to  their  389,  414,  4  D,  M,  &  Cr.  58,  5  II.  L.  Cas. 

representatives,  i.  e.,  their  descend-  873,  892,  900,  25  L.  J.  Ch.  593,  a  very 

ants;  if  no  children,  then  one-half  to  peculiar  question  arose.     A  devise 

the  widow  and  the  other  to  the  next  was  "  to  the  then  nearest  kin  in  the 

of  kin  in  equal  degrees;  if  no  widow,  male  line  in  ^'reference  to  the  female 

then  all  to  the  children  equally;  if  line,"  after  a  term   of  twenty-one 

no  widow  or  children,  then  among  years  for  accumulation.  The  testator 

the  next  of  kin  in  equal  degrees  or  died  a  bachelor,  leaving  one  sister 

their  representatives,  but  no  repre-  and  several  nephews  who  were  tJiw 

sentation  is  allowed  among  collater-  sons  of  a  deceased  sister,  and  also  a 

als  farther  than  the  children  of  tlie  remote  male  relation.     He  provided 

brothers  and  sisters  of  the  intestate,  that  the  legatee  should  take  tlie  name 

1  See  gg  592,  593.  of  Sayers.    The  court  held,  first,  that 


§  620.]  GIFTS    TO    HEIRS    AXD   NEXT    OF    KIN.  841 

of  kin  of  my  paternal  line  "  includes  all  the  descendants  of  the 
ancestor;  that  is,  the  brother  as  well  as  the  grand-chiklrcn  of 
the  testator.^  A  direction  to  distribute  money  among  the  next 
of  kin  of  the  testator  on  the  father  and  mother's  side  requires 
a  distribution  among  all  the  next  of  kin  per  capita,  and  does  not 
justify  a  division  into  two  funds  and  a  distribution  per  stiipes? 
A  provision  for  the  heirs  or  next  of  kin  of  A.,  but  in  no  case  to 
go  to  B.j  where  B.  is,  at  the  death  of  A.,  his  sole  heir  or  sole 
next  of  kin,  is  susceptible  of  two  constructions.  On  the  one 
hand  the  legacy  may  be  void  for  contradiction  and  uncertainty, 
for  it  is  equivalent  to  a  gift  to  a  class  with  a  provision  that  re- 
vokes the  class  gift  if  B.  is  the  sole  member  of  the  class.  Or  it 
may  be  construed  as  a  gift  to  the  heirs  or  next  of  kin  of  A., 
provided  B.  had  predeceased  A.  The  latter  construction  would 
probably  be  preferred  to  avoid  an  intestacy.^ 

§  029.  ^Vheii  the  next  of  kin  as  a  class  are  to  be  ascertained 
iu  case  of  an  immediate  gift. —  So  far  as  the  ascertainment  of 
the  class  which  is  designated  by  the  term  "  next  of  kin  "  is 
concerned,  two  lines  of  cases  are  to  be  found.  The  first  class 
of  cases  comprises  those  in  which  the  devise  is  to  the  next  of 
kin  of  the  testator;  the  other  class  of  cases  comprises  those  in 
which  the  devise  is  to  the  next  of  kin  of  soyne  other  person  than 
the  testator.  Where  the  bequest  is  to  the  next  of  kin  of  the 
testator,  the  question  arises  whether  those  are  to  take  as  next 
of  kin  who  answer  to  that  description  at  the  date  of  his  death, 
or  whether  those  persons  are  to  take  as  next  of  kin  who  would 
answer  that  description  had  he  died  at  some  future  period.  In 
all  cases  of  immediate  gifts  to  the  testator's  next  of  kin,  i.  e.y 
where  the  title  is  to  vest  at  the  death  of  the  testator,  it  is  tlio 
rule  that  tliose  persons  who  are  his  next  of  kin  at  his  death 
take  a  vested  interest,  though  their  possession  is  postponed 

tlio  wonls   "nearest  of  kin   in  tiie  nearest  relation  c.rj)(u7r';>((^r»(/,  ?.^., 

iiuile  line"  did  not  moan  tlie  nearest  some  deseendant  from  tlie  father  of 

of  kin  hcinff  a  male  or  males,  ex-  the  testator,  not  from  liis  mother, 

o'lisive  of  females,  hut  excluded  only  As  the  sister  of  the  testator  answered 

lhoH<j  who  t<Kjk  in  the  female  line;  this  description    preciselj',  she  was 

spcond,  it  was  not  necessary  that  the  permitted  to  take. 

j»erKon  wlio  was  to  take  should  fiave  '  Cooper  v.  Denison,  lU  Sim.  290. 

derived  his  title  as  next  of  kin  ax-  '^\Hn:^di\U'.  v.  Duf^dale,  11  Heav.  403. 

eliiHivi'ly  through   a   line   of   males.  '  White  v.  Sjiringett,  L.   II.    1   Cli. 

Tlie  expres'jion    simply   meant  the  300. 


^42  LAW    OF   WILLS.  [§  G30. 

until  after  the  expiration  of  a  life  estate  in  some  other  person.^ 
Tliiis,  where  the  testator  directs  his  property  to  be  divided  in 
remainder,  al'ter  the  death  of  his  wife,  amonu'  his  next  of  kin  - 
and  the  next  of  kin  of  his  wif<\''  wliere  he  becpuniths  a  reniain- 
<ler  in  his  residuary  estate  after  the  death  of  his  wife  to  such 
persons  as  would  be  entitled  to  succeed  to  the  same  in  case  ho 
has  died  intestate,*  or  where,  after  a  gift  to  a  person  in  fee, 
and,  if  she  died  without  issue,  then  the  property  is  to  go  to  his 
own  relations,'^  it  was  held  that  such  persons  as  would  answer 
to  the  description  of  next  of  kin  or  relations  at  the  time  of  his 
death  took  a  vested  remainder  at  that  date.  So  a  gift  in  re- 
mainder to  my  son  A.  when  he  shall  attain  his  majority,  but 
if  he  die  under  twenty-one  then  "to  such  persons  as  shall  be 
]ny  next  of  kin  according  to  the  statute,"  creates  a  vested  re- 
mainder in  the  son,  who  is  the  sole  next  of  kin  of  the  testator 
at  his  death,  and  this  remainder  goes,  on  the  death  of  the  son 
under  majority,  to  his  heirs.^ 

§  630.  AVhen  ascertainable  as  a  class  if  vesting  is  post- 
poned.—  The  power  of  the  testator  to  attach  a  meaning  to  the 
words  "next  of  kin"  by  proper  language  that  will  include 
those  persons  only,  who  would  he  his  next  oflcin  if  he  should  die 
intestate  at  some  future  period,  is  undoubted.  Thus,  where  the 
provision  in  effect  postpones  the  vesting  until  a  future  period, 
Avhen  the  property  is  to  vest  among  the  next  of  kin  of  the  tes- 
tator, those  persons  will  take  as  legatees  who  would  have  been 
his  next  of  kin  had  he  died  at  the  date  of  the  vesting,  and  the 
persons  who  are  then  capable  of  taking  as  the  testator's  next 
of  kin  are  the  proper  and  lawful  claimants,  irrespective  of  the 
fact  that  at  the  death  of  the  testator  they  were  not  his  next 
of  kin."^ 

1  Keniston  v.  Mayhew,  47  N.  E.  R,  2  jones  v.  Kuappen,  63  Vt.  391,  23 

612;  Harrison  v.  Harrison,  28  Beav.  AtL  R,  630. 

21;  Harrington  v.  Harte.  1  Cox  Ch.  3  Jones  v.  Oliver,  8  Ired.  (N.  C.)  Eq. 

131 :  Mortimer  v.  Slater,  37  L.  T.  520,  369,  371. 

26  N.  W.  R.  134;  Rayner  v.  Mowbray,  ^gmith  v.  Allen,  53  N.  Y.  S.  114. 

3  Bro.  C.  C.  234;  Masters  v.  Hooper,  ^Lee  v.  Massey,  3  De  Gex,  F.  &  J. 

4  Bro.  C.  C.  207;  Garner  v.  Lawson,  113. 

3  East,  278,  290;  Lang's  Will,  9  W.  «  Harrison  v.  Harrison.  28  Beav.  21, 

R.  589;  Mitchell  v.  Bridges,  13  W.  R.  'Finder   v.   Finder,   28   Beav.   44; 

200;  Fbilps  v.  Evans,  4  De  Gex  &  Chalmers   v.   North,  28  Beav.   175; 

Smale,   188;    Lee  v.   Lee,   1    Dr.  &  Boys  v.  Bradley,  10  Hare,  389,  413; 

Sm.  85.  Bessant  v.  Noble,  27  L.  J.  Ch.  336; 


§  631. J  GIFTS    TO    HEIRS    AND    NEXT    OF    KIN.  843 

§631.  Ascertainmeiit  of  the  class  wliero  a  life  estate  is 
sciveu  to  one  of  the  next  of  kin. —  A  distinction  Las  been  made 
by  some  of  the  decisions  where  the  devise  is  to  the  next  of  kin 
of  the  testator,  to  be  distributed  among  them  in  remainder 
after  a  life  estate  in  a  person  who  is  himself,  at  the  death  of  the 
testator,  one  of  the  next  of  Jiin,  though  not  at  that  time  his  sole 
next  of  kin.  The  question  here  arises,  does  not  the  testator, 
by  giving  a  life  estate  to  a  person  who  is  at  liis  death  07ie  of 
his  next  oflin,  by  implication  postpone  the  date  for  ascertain- 
ing the  class  of  next  of  kin  who  are  to  be  the  legatees  ?  For  it 
follows  that  if  all  the  next  of  kin  of  the  testator  livins:  at  his 
death  are  to  take  a  vested  remainder,  the  life  tenant  will  not 
only  take  a  vested  life  estate,  but  he  will  also  take  a  vested 
share  in  fee  in  remainder  as  well ;  and  on  the  contrary,  it  has 
been  suggested  that  the  testator,  by  giving  him  a  life  interest 
in  express  terms,  intended  that  he  should  by  implication  be 
excluded  from  all  participation  in  the  remainder.  However 
this  may  be,  the  general  rule  that  the  class  of  next  of  kin  is  to 
be  ascertained  at  the  testator's  death  is  undoubtedly  applicable 
to  such  a  case.^  So,  also,  the  general  rule  that  the  next  of  kin 
of  the  testator  are  to  be  ascertained  as  of  his  death  is  undoubt- 
edly applicaljle  to  the  case  of  a  remainder  to  his  next  of  kin, 
coming  after  the  death  of  a  life  tenant,  who  is,  himself,  at  the 
death  of  the  testator,  his  sole  next  of  kin.  In  one  or  two  early 
cases  the  circumstance  that  the  life  tenant  was  the  sole  next 
of  kin  of  the  testator  at  his  death  has  been  considered  suffi- 
cient to  exclude  the  life  tenant  from  participating  in  a  provis- 
ion for  the  next  of  kin  of  the  testator  at  the  termination  of  the 
life  tenancy.-  It  will  be  found,  liowevcr,  on  investigation  that 
the  maj<jrity  of  cases  are  in  favor  <jf  aj)[)lying  the  general  rule 
which  ascertains  the  memijers  of  the  class  of  the  next  of  kin 

Horn  V.  Coleman,  1  Sin.  &  Gif.  lO'.t;  &    .J.    4S;5;    St.irr    v.    NewlM>rry,    '.';{ 

Long  V.  Blackall,  :J  Ves.  4Hi\.  Hi'iiv.  4:i(5,  4:58;  (Jundiy  v.  Pinni;.;er.  1 1- 

n.jisljury  V.  Newix)rt.  U  licav.  ;iT<>;  Hi'.iv.  U4,  9!);   limdley  v.   Harlow,  ."i 

Holloway  v.  RiidclilTc.  ',':i  Heav.  H5:i;  Hare,  58!),  5!>4;  In  leRees.  I^  K.  44 

Jenkins  v.  Cower,  2  Coll.  .WT;  Doe  d.  Cli.  Div.  484;  In  re  Ford,  72  L.  T.  "); 

(lanier  v.  I>Jiwsf.n,  li  Kast,  278,  2'.)0:  Uahle   v.   Cable,    10   Lkrav.   507,   501); 

Masters  V.  Hoo|M'r.  4  lirr).  C.  C.  207;  «////*•.?■  (5l  1. 

Harrink'ton   v.   Harte,   1   Co.v,  Ch.  H.         -Mones  v.  C..lli.ck,  M  Ves.  H8;  Hiid.ii 

i:!l:   H<.iloway    v.    Holloway,  5   Ves.  v.  l!<-wle(t.  2  My.  &  K.  i»0;  Hutler  v. 

yuy,  401;  Wharton  v.  iJarker,  4  Kay  Uushnell,  y  My.  &  Cr.  2U2. 


841  LAW    OF    WILLS.  [§  G32. 

as  of  the  death  of  the  testator,  even  when  the  life  tenant  is 
himself  the  sole  next  of  kin  at  the  testator's  death.'  An  ex- 
press provision  that  the  property  shall  go  to  such  persons  as 
sliall,  after  a  life  estate,  tluii  be  considered  as  "?»?/  next  <>f  l-in. 
according  to  statute,''^  and  shall  then  be  considered  the  next  of 
kin  of  '•'■my  deceased  wife,''^  by  the  effect  of  the  word  "M^v?," 
means  those  who  are  the  next  of  kin  of  the  testator  and  of  his 
wife  in  case  they  had  died  immediately  at  the  termination  of 
the  life  estate.^  The  fact  that  a  direction  is  inserted  that  upon 
the  death,  unmarried,  under  majority,  or  without  issue,  of  a 
person  to  Avhom  property  is  devised,  the  said  property  is  to  go 
to  the  next  of  kin  of  the  testator  according  to  the  statute,  where 
the  primary  taker  is  one  of  the  next  of  kin  at  the  death  of  the 
testator,  indicates  very  strongly  that  the  testator  means  those 
persons  who  would  be  his  next  of  kin  if  he  had  died  immedi- 
ately after  the  death  of  the  primary  taker.  Under  such  a  con- 
dition of  affairs  it  is  very  improbable  that  the  testator  intended 
that  person  to  take  as  one  of  his  next  of  kin  upon  whose  death 
"without  issue  he  has  expressly  directed  the  property  should  go 
to  others.' 

§  63'2.  Immediate  gifts  to  the  next  of  kin  of  other  persons 
than  the  testator. —  A  gift  to  the  next  of  kin  of  A.,  which  is 
to  vest  in  them  at  the  death  of  the  testator,  may  be  either  to 
the  next  of  kin  of  a  person  who  is  dead  at  the  date  of  the  will, 
or  at  the  death  of  the  testator,  or  to  a  person  who  is  living  at 
the  death  of  the  testator.  AVhere  the  gilt  is  to  the  next  of  kin 
of  a  person  who  has  died  before  the  date  of  the  will,  or  after 
that  and  before  the  death  of  the  testator,  it  means  the  next  of 
kin  of  that  person  living  at  his  death,  who  also  survive  tJve  tes- 
tator}   In  a  case  where  the  gift  is  to  the  next  of  kin  of  a  per- 

iSay  V.  Creed,  5  Hare,  580,  587;  Dove  v.  Tore,  128  Mass.  (1880),  38; 

Jenkins  v.  Gower,  2  Coll.  537;  Pearce  Minot  v.  Harris,  132  Mass.  328:  Whall 

V.  Vincent,  1  Cr.  &  M.  598,  2  Mj^  &  v.  Converse,  146  Mass.  345,  5  N.  E.  R. 

Cr.  800;  Seifferth  v.  Badham,  9  Beav.  823;  Pinkbam  v.  Blair.  57  N.  H.  227, 

370,   374,  10    Jur.    892;    Ehnsley    v.  242.     Contra,  Leonard   v.   Ha  wort  1 1 

Young,  2  My.  &  K  82,  780;  Miller  v.  (Mass.,  1898),  51  N.  E.  R  7. 

Eaton,  Sir  G.  Coop,  272;  Minter  v.  -  Wharton  v.  Barker,  4  K.  &  J.  48:5. 

"Wraith,  13  Sim.  52,  63;  Booth  v.  Vic-  3  Butler  v.  Bushnell,  3  3Iy.  &  K.  232. 

ars.  1  Coll.  6,  12;  Bullock  v.  bownes,  4  Hobgen  v.  Neale,  L.  R.  11  Eq.  48; 

9  H.  L.  C.  1,  18;  Fargo  v.  Miller,  150  Vaux  v.  Henderson,  1  Jac.  &  WaL 

Mass.  225  (1889),  5  L.  R  A.  690,  692;  388. 
Minot  V.  Tappan,  122  Mass.  (1877),  536; 


§   G33.]  GIFTS    TO    HEIES    AND    XEXT    OF    KIN.  845 

son  \7ho  is  living  at  the  death  of  the  testator,  it  will  not  vest 
in  those  persons  who  would  be  next  of  kin  if  he  should  die  im- 
mediately after  the  testator,  but  in  those  who  may  be  such  at 
his  death,  whenever  that  event  may  take  place.  And  this  is 
the  case  even  though  the  distribution  may  be  expressly  post- 
poned until  long  subsequent  to  the  death  of  the  person  whose 
next  of  kin  are  to  benefit.^ 

g  633.  Presumption  that  testator  means  legitimate  next  of 
kill. —  AVhere  a  testator  uses  the  words  "  next  of  kin,"  whether 
with  or  without  a  reference  to  the  statute,  it  will  be  presumed 
that  he  means  those  who  are  legitimately  such.-  Thus,  where 
he  gives  money  to  his  illegitimate  child  by  name,  with  a  re- 
mainder to  his  own  next  of  kin  under  the  statute,  who  were  his 
brothers  and  sisters,  and  who  were  also  illegitimate,  the  latter 
did  not  take.'  But  where  the  testator,  in  making  provision  for 
statutory  next  of  kin,  expressly  provides  that  A.  shall,  for  the 
purposes  of  his  will,  be  deemed  the  lawful  child  of  B.,  A., 
though  an  illegitimate  daughter  of  B.,  is  entitled  to  take  as  one 
of  the  next  of  kin  of  B.* 

1  Dan  vers  v.  Earl  of  Clarendon,  1  death  of  the  testator  will  take  vested 

Vern.  35;  Cruwys  v.  Coleman,  9  Ves.  interests  in  remainder.     Stert  v.  Pla- 

319;  Gundry  v.  Pinniger,  1-4  Beav.  94,  tel,  5  Bing.  N.  C.  431 

99,  1  De  Gex,  iMac.  &  G.  502;  Smith  2  Harraden  v.  Larrabee,  113  Mass. 

V.   Palmer,  7  Hare,   235;  Walker  v.  430,  431;  In  re  Turner's  Estate,  5  Pa. 

>Iarquis  of  Camden,  IG  Sim.  329.  And  Dist.  Court,  360. 

where  the  gilt  is  to  a  person  for  his  sgtandley's  Estate,  L.  R.  5  Eq.  303, 

life,  with  a  remainder  in  fee  to  the  310. 

next  of  kin  of  that  person,  the  ex-  *  Wilson  v.  Atkinson,  4  De  Gex,  J. 

pectant  next  of  kin  living  at  the  &  S.  455. 


CIIA.PTEII  XXXI. 


GIFTS  TO   PERSONAL  REPRESENTATIVES  AND   EXECUTORS  AS 
PURCHASERS  AND  BY  REPRESENTATION. 


^  C34.  Tlie  priniiary  meaning  of  the 
words  '•  legal "  or  ''  personal 
representatives." 

635.  Legal  or  jiersonal  representa- 

tives may  mean  "next  of 
kin." 

636.  Expressions  favoring  the  next 

of  kin  as  personal  represent- 
atives —  Division  per  stirj^es 
or  j)cr  capita. 

Mode  of  distribution  among 
personal  representatives. 

Gifts  of  real  property  to  legal 
or  personal  representatives. 


63" 


638. 


§  039.  AVhen  executors  and  adniinis- 
tratoi's  take  by  limitation, 
and  not  as  pui'chasers. 

010.  AVhetheran  executor  takes  in 
trust  or  beneficially. 

041.  Language  whicli  may  indicate 
that  tlie  executor  is  to  take 
in  trust. 

612.  Bequests  to  executors  for 
their  own  benefit. 

643.  Beneficial  gifts  to  executors 
or  trustees  by  name  — When 
conditional  upon  the  accept- 
ance of  the  office. 


§634.  The  primary  moaning  of  the  words  *Me;L?al "  or 
^'^  personal  representatives."  —  The  ordinary  meaning  of  the 
"words  "  legal  representative  "  or  "  personal  representative  "  is 
"  executor  "  or  "  administrator,"  i.  e.,  one  who  represents  the 
deceased  as  to  his  personal  property.  Usually  these  words  are 
words  of  limitation,  creating  an  absolute  interest  in  the  de- 
ceased person.  The  executor  represents  the  estate  of  his  tes- 
tator more  actually,  says  Lord  Coke,'  than  the  heir  represents 
his  ancestor. 

The  addition  of  the  word  "  personal "  to  the  word  "  repre- 
sentative "  does  not  favor  the  meaning  "  next  of  kin,"  as  that 
word  implies  only  that  the  representative  has  to  do  exclusively 
with  the  personal  estate  of  the  decedent  whom  he  represents, 
while  the  term  "  legal "  signifies  that  he  is  recognized  by  the 
law,  and  does  not  extend  the  meaning  of  the  word.  And,  on 
the  other  hand,  the  next  of  kin  can  hardly  claim  to  represent 
the  testator  as  kindred  of  his  blood,  for  the  class  of  next  of  kin, 
as  indicated  by  the  statute  of  distribution,  includes  persons  re- 
lated to  the  deceased  in  different  degrees  of  blood  relationship, 

1  Co.  Litt.  209a. 


§  631.]  GIFTS   TO    PERSONAL    KEPRESENTATIVES,  ETC.  SiT 

and  may  include  the  wife^  loJio  is  not  a  relation  hy  Mood  at  all. 
Xor  have  the  creditors  any  claim  against  the  next  of  kin  as 
representatives  of  the  deceased,  for  they  must  resort  to  his  ex- 
ecutor or  administrator. 

For  these  reasons  the  words  "legal  representatives"  will,  in 
the  absence  of  anything  in  the  context  to  indicate  that  they 
have  a  different  signification,  be  presumed  to  mean  executors 
or  administrators,  and  it  will  require  more  than  merely  slight 
indications  or  hints  of  a  contrary  intention  to  extend  the  mean- 
ing of  the  term  so  as  to  include  the  next  of  kin.^  Accordingly 
it  seems  that  in  a  direction  to  divide  a  fund  among  children 
and  the  personal  7rj)resenfatives  of  deceased  children^'-  to  divide 
among  several  by  name,  and  in  the  case  of  the  death  of  any  of 
them,  then  to  his  personal  representatives;  ^  in  a  gift  to  A.  or 
his  "proper  representatives"  after  a  life  estate;*  a  gift  to  the 
"personal  representatives  of  A."  on  A.'s  death  without  issue; ^ 
or  a  gift  to  be  divided  amongst  cousins  now  existing  or  their 
representatives^  the  word  in  each  case  means  the  executor  or 
administrator  who  takes,  not  beneficially  for  himself,  but  by 
representation  and  substitution  for  the  benefit  of  the  estate  of 
the  decedent. 

The  presumption  is  that  these  words  are  used  in  their  tech- 
nical sense,  and  they  should  be  construed  as  words  of  limitation, 
meaning  an  executor  or  administrator,  and  not  of  purchase, 
unless  that  is  the  intention  of  the  testator  apparent  in  the  will. 
Thus,  in  a  gift  to  A.  and  his  personal  or  legal  rep>resentativcs,  or  a 
gift  to  A.  or  his p>ersonal  or  legal  representatives^  the  word  means 
prima  facie  executor  or  administrator,  and  gives  A.  an  abso- 
lute interest  if  he  survive  the  testator;'  and  the  fact  that  the 

'  Halspy  V.  Patf'rsf)n.  87  N.  J.  Eq.  ton  v.  Skccis,  t  Hass.  &  :sryl.  587,  589; 

445;  Livennorev.SorntTsfN.  J.,  18H»),  Gryll's  Trust,  L.  R.  (J  Kq.  589. 

1«  Atl.  K  5i:{;  Cuinl«'rl('Ke  v.  Cum-  2I'ric»)  v.  Strange,  (',  Madd.  159. 

»HTlct,'.-Wan',  L.  R  15  Cli.  D.  2(;9, 1'78,  :'  lliii.-lilKrL'  v.  Wcstwooil,  2  De  CJex 

5«  L.  J.  Ch.  717,  .{8  W.  K.  707;  In  ro  &.  S.  21(5. 

Tuninr,  2  J)r.  &  Sin.  5()1,  .508;  Cotton  *Corl)yn  v.  FivikU,  I  Vi's.  418.  433. 

V.  C«itton,  2  Beav.  (i7;  HridKO  v.  .Ahbot,  •'•  In  ru  Wymlliams  Trust,  Ij.  II.  290, 

W   liro.   C.   C.  224;  BriRgs  v,   U|>lon.  Lit2. 

I^   It.  7  Ch.  :J7(J;  In   re  Cruwfonl,  2  "^In  ro  (  lawlonl,   2   Dnwry,  2;t(), 

iJn-wry,  2W,  2:55,  215;  Dixon  v.  Dixon  2:i5. 

(18.57),  24   W'iw.  129,  \'.\'.\,  1:15:    In  n;  'Cox  v.  (iirwi'ii,  118  Mn8.s.  (1875), 

II<ii.lfrs<jn,    28    Hcav.    050;    Leak    v.  198.  2IK»:  ClarU  v.  Caniniann. -l.'}  N.  Y. 

Miic.lowull,  'M  Bcuv.  2:i«,  211;  Sal>LT-  S.  575,  II   S^y.  Div.  127;  Nurwooa  v. 


8-18  LAW    OF    WILLS.  [§  G35. 

gift  to  A.  anil  his  personal  representatives  conios  after  a  life 
estate  in  another  is  not  material  to  vary  tliis  construction.^  So 
generally  a  betjuest  to  a  personal  representative,  where  the  word 
is  phiinly  a  word  of  limitation,  will  not  be  for  his  benefit  indi- 
vidually, but  for  the  purpose  for  Avhich  he  holds  tiie  personal 
estate  of  the  individual  whom  he  re])rescnts.- 

§  035.  Legal  or  personal  represeatatives  means  next  of 
kin. —  The  question  frequently  arises,  in  the  case  of  a  gift  to 
personal  or  legal  representatives,  whether  it  is  direct  to  them 
or  in  substitution  on  the  death  of  another  person.  Does  the 
testator  mean  executors  or  administrators,  which  the  words 
signify  in  their  primary  sense,  or  has  he  used  them  in  a  secondary 
sense  to  indicate  some  other  class  of  persons?  AVherc  the  tes- 
tator gives  personal  property  in  absolute  terms  to  his  own  per- 
sonal representative,  strong  reasons  exist  against  construing  the 
term  to  mean  the  executor,  because  of  the  fiduciary  character 
which  the  executor  holds  to  the  testator.'  The  executor  is  re- 
munerated by  the  law,  allowing  him  a  commission.  It  is  wholly 
uncertain  during  the  life  of  the  testator  who  will  be  his  repre- 
sentative, for  the  person  nominated  may  not  survive  the  tes- 
tator; while,  if  he  does  survive  and  qualify,  he  may  become 
insolvent  or  extravagant;  may  dissipate  the  estate,  and  be  re- 
moved. For  tliese  reasons  it  is  the  rule  that  slight  indications 
of  the  intention  of  the  testator  to  use  the  words  otherwise  than 
to  designate  his  executor  will  justify  construing  them  as  syn- 
onymous with  next  of  kin  under  the  statute  of  distribution. 

Many  of  the  reasons  before  stated  are  also  applicable  where 

Mills.  1  Ohio  X.  p.  314;  Hill  v.  Ever-  Div.  269;  Lugar  v.  Harman,  L.  R.  8 

son,  2  Ohio  N.  P.  42,  3  Ohio  Dec.  133;  Eq.  139.     See  also  5  L.  R.  A.  96. 

Ware  V.  Fisher,  2  Yeates  (Pa.,  1795),  iJn   re  Turner,  2  Sra.  &  G.  501; 

.578;  In  re  Rankin's  Estate.  13  Pa.  Co.  Crawford's  Trust,  2  Drew.  230;  Cum- 

Ct.  R.  617;  Williams  v.  Knight,  18  berlege  v.  Cumberlege-Ware,  L.  R.  45 

R.  I.  177  (1893),  27  Atl.  R.  210:  Ather-  Ch.  Div.  269,  278,  59  L.  J.  Ch.  717,  38 

ton  V.  Crowther,  19  Beav.  448,  451;  W.  R.  767. 

Wing  V.  Wing,  34  L.  T.  (X.  S.)  941.  24  2  Smith  v.  Barneby,  2  CoUyer,  728, 

W.  R.  878;  Price  v.  Strange,  6  Madd.  737.    And  see  cases  in  note  1,  p.  849. 

159, 163;  In  re  Turner,  2  Smale  &  Gif.  A  legacy  of  the  income  of  money  in 

501;  Chapman  v.  Chapman,  33  Beav.  trust  to  a  woman  for  her  life,  and  on 

556;  Halloway  v.  Clavkson,  2  Hare,  her  death  to  be  paid  to  her  personal 

523;  Taylor  v.  Beverley,  1  Colh-.  108,  representative,  gives  her  an  absolute 

116;  Saberton  v.  Skeels,  1  Russ.  &  M.  interest  in  the  fund.     Alger  v.  Par- 

587,  589;  In  re  Ware,  L.   R.  45  Ch.  rott,  L.  R.  3  Eq.  328. 

^Ante,%G3i. 


I  635.]  GIFTS   TO    PERSONAL   KEPKESEXTATIVES,  ETC,  S49 

the  testator  has  given  projierty  to  a  third  person  and  his  per- 
sonal rejiresentativcs.  If  that  person  is  alive  at  the  date  of  the 
tj.'tcution  of  the  will,  the  testator  cannot  know  whether  he  will 
die  testate  or  intestate,  or  who  will  be  his  executor  or  admin- 
istrator; or,  if  he  shall  die  testate,  who  will  be  his  residuary 
legatee.  But  he  does  know,  or  may  readily  ascertain,  what 
l^ei-sons  would  be  his  next  of  kin  under  the  statute  of  distribu- 
tion, and  who,  to  that  extent,  would  represent  liiiu.  For  these 
reasons  the  words  "  legal  or  personal  representatives  "  are  very 
frequently  construed  to  mean  the  next  of  kin  by  the  statute.^ 
If  the  gift  is  to  the  legal  representatives  of  the  testator  him- 
self, the  time  at  which  they  are  to  be  ascertained  is  material 
in  determining  what  persons  are  meant.  The  fact  that  the 
gift  is  an  immediate  one  to  the  testator's  legal  representative 
may  indicate  that  by  representative  he  means  his  executor, 
who  will,  as  a  ^wa.sZ-trustee,  take  for  the  benefit  of  the  residuary 
legatee.  But,  on  the  other  hand,  if  the  vesting  of  the  gift  is 
postponed,  so  that  the  date  of  ascertaining  who  is  the  legal 
representative  comes  after  the  end  of  a  prior  life  estate,  by  which 
time,  in  all  probability,  the  executor  of  the  testator  will  have 
been  discharged,  the  inference  will  be  that  he  means  his  next 
of  kin.-  The  same  reasoning  will  apply  to  a  gift  of  personal 
property  to  another  person  for  his  life  with  a  power  of  ap- 

'  The    leading    case  is    Bridge  v.  Smith  v.  Pahner,  7  Hare,  225.  227; 

Abbot,  3  Bro.  C.  C.  224,  227,  and  this  Booth's  Estate,  Week.  Notes  (1877^ 

has  Vx:en  repeatedly  affirmed  and  fol-  p.  129;  Tarrant  v.  Backus,  63  Conn, 

lowed.  Kilner  v.  Leech,  10  Beav.3G;5;  277,  28  Atl.  R.  46;  Jones  v.  Tainter, 

Oryll's  Trust.  L.  R.  6  Eq.  589,593;  15  Minn.  517  (1870);  Davies  v.  Davies, 

Stockdale  v.  Nicholson,  L.  R.  4  Eq.  55  Conn.  319,  11  Atl.  R.  500;  War- 

359;  In  re  Horner,  L.  R  37  Ch.  D.  necke   v.   LtMiiljca,  71   III.  92  (1873); 

()95.  57  I^  J.  Ch.  211,  58  L.  T.  103,  36  lirokaw  v.  Hudson,  27  N.  J.  E(i.  135; 

W.  R.  348;  In  re  Knowles,  59  L.  T.  Pliyfo  v.  Pliyfe,  3  Bradf.  (N.  Y.)45; 

359;  Robinson  V.  Evans,  29  L.T.(N.  8.)  Drake   v.   Pell.  3   Edw.   Ch.   (N.   Y., 

715,  22  W.  R.  199;  Miine  v.  Cilbart,  2  1.S38),  251,  270;  Potter's  Estate,  13  Pa. 

lieav.  67,  69;  Bwth  v.  Vicars,  1  Coll.  St.  318;  In  re  Hall,  2  Dem.  (N.  Y.) 

<5,  12;  Cotton  v.  Cotton,  1  Mad.  45;  112;  Lee  v.  Dill,  39  Barb.  520;  i\\\> 

Alger   V.   Parrott,  L.   R.  3  E.i.  828;  bons  v.  Eairlamb.26  Pa.  St.  217  (IH.50); 

I>jrig  V.  lilac-kail,  1   Anut  128.  3  Ves.  I^)dg(f  v.  Weld,  139  Mass.  (1W5).  504; 

4H(5;  Horw'iKjol  V.  Wats<jn,  3  Ve.s.  3h;5;  .Joimson  v.  .Joiinstonc,  12  Rich.  (S.  C.) 

Walker  V.  Makin,  6  Sim.  118;  Styth  E(|.  259.  2(>();  Abluilt  v.  Jenkins,  10 

V.  Monro.  6  Sim.  19;  Briggs  v.  U|)ton,  Scrg.  &  R.  (I'iu)  290. 

21  W.  li.  :J0,  I..  R  7  (;ii.  376.  3H2:  UnW  -'  Nicholson  v.  Wilson.  II   Sim.  5  19, 

inwjri   V.  Smith.  6  Sim.  IT.  IH;   Halli>-  .551;   Walker  v.  Camden,  16  Sim.  329. 
way  V.  ItidclilFe,  23   Beav.  163,  169; 
M 


SoO  LAW  OF  WILXS.  [§  636. 

pointment  in  him  of  the  fee  by  vrill,  and  a  limitation,  in  default 
of  such  an  appointment,  to  the  personal  or  legal  representa- 
tives of  the  donee.'  The  next  of  kin  of  the  donee  will  take  in 
default  of  an  execution  of  the  power. 

So  where  a  provision  was  made  for  the  distribution  of  the 
residue  among  the  testator's  grand-children  and  the  represt-nta- 
iire^  of  his  deceased  tjTand-children/  or  amoncr  several  indi- 
Tiduals  named,  and,  in  case  of  the  d^aiA  of  any  of  Ihim  heford 
the  U^afoT,  to  prevent  a  lapse  to  his  or  her  legal  representatives,' 
the  word  '*  representatives  "  will  be  construed  to  mean  the  next 
of  kin  under  the  statute,  who  will  take  as  purchasers  under  the 
TsilL  So,  too,  this  word  will  be  construed  to  be  synonymous 
with  "descendants"^  or  "isne,"  where,  upon  death,  in  default 
of  representatives,  there  is  a  limitation  over  to  the  next  of  kin.* 

§  6-3(3.  Expressions  favoring  the  next  of  kin  as  personal 
representatives  —  Division  per  stirpes  or  per  capita. —  Any 
reference  by  the  testator  to  the  statute  of  distribution,  made  in 
connection  with  a  gift  to  "legal  or  personal  representatives," 
will  imply  a  construction  in  favor  of  the  next  of  kin  taking 
as  representatives,  TT--  -  %  r :  -">•.. r.  'or  those  persons  who 
should  be  '^A.'s  rt\  ^na  to  the  statute  cf 

distribictlon^^  *  or :  _  _  :  an  appoint- 

ment by  A.  "f    '  '  :^  .    -:  . :  -    .  .    .         ..  of  admmi^ 

tratkon^'''^  may  .  -by  this  reference  to  the  statutory  mode 

of  division,  that  the  testator  meant  the  next  of  kin  of  A.,  and 
not  his  executor.  So,  also,  the  fact  that  the  testator  has  pro- 
vided for  a  division  j3^r  stirpes,  and  not^r  capita,  among  per- 
sonal representatives  is  a  Tery  strong  circumstance  favoring 
next  of  kin,  for  such  a  direction  is  quite  inapplicable  and  un- 
meaning if  an  executor  alone  is  meantJ 

1  BobinsoQ  r.  Smith.  6  Sim.  47.  (N.  Y.,  lS4o).  417;  Brent  v.  "Washing- 

'  In  re  Bates,  159  Mas&,  ^52,  259,  St  ton,  IS  Gratt.  lTa->  52^ 

N.  E.  R  26&  «Briggs  v.  Upton,  26  L.  T.   >'.  S.> 

» Bridge  V.  Abbot,  3  Bra  C  C.  224,  376,  3S2;  Wflsom  t.  Pitkington.  11 

227;  Brent  v.  Washington,  IS  Gratt.  Jut.  537;  Jennings  t.  Galiimore,  3 

(Ta.)  526L  VesL  14«. 

*Athertcai  t.  Crowther,  19  Beav.  'Atherton  v.  Crowther  tl?.>4>.  19 
44S-  The  addition  ofthe  word -next"  Beav.  44S;  Phillip  v.  Evans.  4  DeGex 
maj  define  peiscMaal  representative  &  Smale,  IS"?.  In  Atherton  v.  Crow- 
as  next  of  Idn.  Booth  v.  Yicars,  1  therthere  ■was  a  gift  in  remainder  to 
CoIIver.  6.  H.  children  of  A  as  a  class,  bxit  if  any 

*  Watson  T,  Bonnev,  2  SandL  Ch.  of  the  said  children  should  die  in  A, 's 


§  637.]        Girrs  to  peesoxal  eepeesextatttes,  etc.  S51 

Whether  a  direction  that  the  property  which  is  devised  shall 
be  divided  ^hare  and  >;hare  alike,  or  equally,  between  or  among 
the  personal  representatives,  defines  the  word  as  the  next  of 
kin  or  not,  may  not  be  positively  determined-  It  has  been 
held  that  such  a  direction,^  and  also  a  direction  to  pay  "  to  or 
amongst"  the  personal  representatives  of  A.,-  are  inconsistent 
■with  an  intention  that  the  executor  of  A.  should  take;  but  the 
contrary  has  also  been  held.'  The  fact  that  the  testator  in  a 
will  which  in  one  clause  gives  property  to  personal  or  legal 
representatives  uses  the  word  "'  executor  "  or  "  administrator  " 
in  another  part  of  the  will,  with  a  correct  knowledge  of  its 
purport  and  technical  meaning,  is  almost  conclusive  as  an  in- 
dication that  he  uses  the  words  ••  personal  representatives  "  to 
mean  the  next  of  kin;  *  while  on  the  other  hand,  if  he  uses  the 
words  "  personal  representatives "'  in  one  part  of  his  will  as 
meaning  executors,  that  meaning  may  easily  attach  to  the 
words  throughout  the  will.^ 

§637.  Mode  of  distribution  among  personal  representa- 
tives.—  In  cases  where  the  words  *'  personal  representatives  *' 
are  to  be  construed  as  synonymous  with  next  of  kin  under  the 
statute,  the  property  will  be  distributed  between  or  among 
them  per  stirj/es  according  to  the  statute  and  as  tenants  in 
common.'  And  where  the  gift  is  to  A.  and  B.,  "  share  and 
share  alike,*'  or  "their  personal  representatives,*'  the  direction 

life-time,  then  for  the  personal  repre-  Colly.  108,  116;  Chapman  v.  Chap- 

sentatives  of  such  child  or  children  man.  33  Beav.  556,  557. 

to  take  per*/ 1  rpe«  and  not />ercqpi7a,  *  Booth  v.  Vicars.  1  CoUyer,  6, 12; 

and  the  words  "personal  represent-  Walter  v.  Makin,  6  Sim.   148.  151; 

atives  "  was  held  to  signify  descend-  Walker  r.  Camden,  16  Sim.  329,  332. 

ants.  ^  Dixon   t.  Dixon,  24    Beav.   129. 

'  Smith  V.  Palmer,  7  Hare  (1S48),  And  s«e  In  re  Crawford's  Tnists.  3 

225,228.  -To  A.,if  heshoxildbethen  Drewry,    230.    246;     Hiuchcliffe     v. 

living;  but  if  he  should  then  be  dead,  Westwood,  2  De  Gex  &  S.  216:  Cliap- 

to  his  legal  representative,  or  repre-  man  v.  Chapman,  33  Beav.  556,  557. 

sentatives,  if  more  than  one,  sliare  *  Booth  v.  Vicars,    1  Colly.  6.  12; 

arul  share  alike,"  See  also  Crawford's  Rowland  v.  Gors^uclt,  2   Cox  Ch.  R. 

Trusts,  2  Drewry,  2:3(),  240.  246;  King  1S7,  IScS:  Alker  v.  Barton,   12   L  J. 

V.  Cleaveland.  26  Beav.  26,  27,  4  De  Ch.  16;  Walker  v.  Camden,  16  Sim. 

Gex  &  Ja  477.  329;  Stockdale  v.  Nicholson,  L.  R  4 

»Baine8  v.  Ottey,  1  MyL  &  K.  46^1  Eq.  359;  Stocks  Appeal  20   Pa.  St. 

»Wing   V.  Wing,  34  ll  T.  941,  942,  349;  Ualloway  v.  RadcliiTe,  23  Beav. 

24  W.  IL  878;  Taylor  v.  Beverley,  I  1C3,  17L 


852  LAW  OF  WILLS.  [§§  G38,  639. 

for  ecjualitv  of  division  applies  to  A.  and  15.  alone.'  So  Avhero 
there  was  a  direction  for  division  among  the  representatives 
of  such  children  of  the  testator  as  should  have  children^  the 
word  was  construed  to  mean  children,  and  distribution  was  di- 
rected per  stirpes!' 

%  G:?S.  (lifts  of  real  property  to  lou:al  or  personal  repre- 
sentatives.—  The  word  "representative,"  used  in  reference  to 
a,  devise  of  real  property,  means  the  h(>ir.^  Thus,  in  a  direc- 
tion to  divide  real  property  ecjually  among  the  children  of  the 
testator  or  "  their  legal  representatives,"  the  word  means  heirs, 
and  is  a  Avord  of  limitation,  not  of  purchase,  and  the  children 
take  a  vested  estate  in  fee  at  once  on  the  death  of  the  testator.* 
The  word  "representatives,"  in  most  cases  of  this  sort,  is  em- 
ployed as  a  Avord  of  substitution  solely  to  prevent  a  lapse. 

§  631).  AVlien  exeentors  and  administrators  take  by  limita- 
tion, and  not  as  pnrchasers.—  Ordinarily  the  words  "execu- 
tors "  and  "  administrators  "  are  words  of  limitation,  and  not  of 
purchase;  as,  for  example,  in  a  bequest  of  personal  property  to 
A.  and  his  executors  and  administrators,  or  to  A.  and  his  per- 
sonal representatives.  In  a  case  of  this  sort  the  w^ords  indicate 
merely  that  A.  takes  an  absolute  interest  in  the  personal  prop- 
erty if  he  survive,  and  then,  his  personal  representatives  derive 
their  title,  not  under  the  will,  hut  from  him.  The  presumption 
that  the  words  mentioned  are  used  as  words  of  limitation  is 
recognized  not  only  where  a  gift  is  to  the  executors  and  admin- 
istrators ly  representation  when  the  decedent  has  an  absolute 
title,  but  also  where  a  bequest  is  to  a  person  for  life,  and  after 
his  death  to  his  executors  and  administrators  or  to  his  personal 
representatives.  This  is  a  very  common  construction  in  mar- 
riage settlements  in  England,  where  personal  property  is  given 
to  trustees  to  pay  the  income  thereof  to  the  husband  for  his 
life,  with  a  remainder  to  the  wife  for  her  life,  and  with  a  power 
of  appointment  in  her  by  deed  or  will,  and,  in  default  of  an  ap- 

1  Booth  V.  Vicai-s,  1  CoUj-er,  6,  12;  737;  Ewing  v.  Jones,  130  Ind.  247,  29 

Abbott  V.  Jenkins,  10  S.  &  R.  (Pa.)  N.  E.  R.  1057. 

296.  *  Chasy  v.  Gowdry,  43  N.  J.  Eq.  95 

2 Merrill  v.  Curtis,  39  Atl.  R.  973  (1887),    9    Atl.   R.    580;    Tarrant    v. 

(N.  H.,  1898).  Backus,  63   Conn.  277,  28  Atl.  R.  46, 

'Chapman  v.  Chapman,  33  Beav.  construing     "legal    representatives 

556;  Smith   v.  Barneby,  2   ColL  728,  and  their  lieirs."     See  also  Ketchum 

V.  Corse,  65  Conn.  85,  31  AtL  R.  486. 


§  639.]  GIFTS    TO   PEKSOXAL    KEPKESEX'TATIVES,  ETC.  853 

pointraent,  to  her  personal  t^tpresentatit'es,  executors  or  assigns. 
If  the  power  of  appointment  is  executed,  all  estates  after  the 
life  estate  of  the  wife  are  defeated.  But,  on  the  other  hand,  as 
it  is  clearly  the  intention  of  the  settlor  to  benefit  the  wife  in 
the  case  of  her  death  before  her  husband,  the  words  "  personal 
representative"  are  given  their  technical  meaning;  and  where 
she  dies  without  exercising  the  power  and  without  issue,  the 
property  vests  in  her  executor  or  administrator,  as  the  case  may 
be,  for  the  benefit  of  her  residuary  legatee  or  next  of  kin.^ 

In  some  cases,  even  the  word  "  executor  "  has  been  lield  to> 
mean  the  next  of  kin.  The  context  would  have  to  be  ver;y 
strong  in  their  favor  to  justify  this  construction.  Where  the' 
provision  was  that,  i?i  case  of  the  death  of  any  oj"  the  legatees,  his 
or  her  legacy  should  go  to  his  or  her  executor  or  administrator, 
it  was  held  that  the  next  of  kin  should  take  as  purchasers  under 
the  original  will  as  ao-ainst  the  executor  of  a  deceased  leiratee.- 
But  a  limitation  to  "executors,  administrators  and  assigns,"  in 
default  of  the  exercise  of  a  power  of  appointment,  will  receive 
its  technical  construction,  and  the  property  will  go  to  the  per- 
sonal representatives  for  the  benefit  of  the  estate  of  the  dece- 
dent.' 

The  word  "  executor,"  or  "  administrator,"  may  be  a  word 
of  limitation  even  where  a  gift  is  directly  to  them,  either  ap- 
parently by  substitution  for  a  deceased  person,  or  without  any 
legacy  or  implication  of  a  legacy  to  the  person  he  represents. 
AVe  are  here  speaking  of  the  personal  representative,  not  of  the 
testator,  but  of  a  third  person.  In  all  these  cases  the  personal 
representative  will  take  for  the  benefit  of  the  estate  of  the  per- 
son he  represents;  and  the  party  \\ii(jm  he  represents  will  have 
a  disposing  power  over  that  property,  notwithstanding  the  pe- 
culiar manner  in  which  it  is  aecjuired.^ 

•Smitli  V,  Dudley,  9  Sim.  IL'").  VV-i;  Wyn.lliam's  Trusts,  L.  R.  1   Etj.  :."J0,. 

PuK'e  V.  Sf>iK.'r.  1 1  Iliire,  :{21,  :i:> 4;  Mer-  l".):.';  Buliaer  v.  Jiiy,  3  Myl.  &  K.  '204, 

you  v.Collctt,  «  Ik'av.yHO,:JX';  Allen  4  Siui.  4«,  M;  Stocks  v.   Dodsley.   1 

V.  Thorp.  7   lifjjiv.  12,  75;    l).-vull   v.  Keen,  iJS",,  ;j2H. 

DickenH,    'J    .iur.    TmO;    Sabcrton    v,  -  I'alin  v.  Hills,  (5  Sim.  17,  1  Myl.  & 

Sk.-el.s,    1    Hu.ss.  &   My.    .'jHT;  Collier  K.  470,  4«rj. 

V.  .Sjuire,  -i  Hush.  407,  475;  Wellman  ^(jrufrtey  v,  Ilumpage,  1  Heav.  U\, 

V.    UowrinK,   2    Ku.sh.   ;i74,   :i7»,   :{h<),  r,2. 

3  Sim.  :J21;  Daniel  v.  Du.lley.  1  I'hil.  *Tretlie\vy   v.  Helyar.  L.  R  4  Clu 

1;  Best's  Tru-sts,  L.  K.  l'^  K<1.  (]S(],«;'JO;  D.  .V.>,  57;   Seymours    Truhts   (,185U), 


354  LAW    OF    WILLS.  [§  040. 

§  040.  "Wliotlier  an  executor  or  juliuiiiistrator  takes  iii 
trust  or  benelieially. —  At  common  law,  before  the  ])assage  of 
the  statutes  11  Geo.  TV,  and  1  AVm.  IV,  ch.  40,  where  a  man 
died  after  making  a  will  which  contained  no  I'csiducD'ij  'bequest, 
but  appointing  an  executor,  the  executor  would  take  the  resi- 
due as  his  own  in  the  absence  of  a  legacy  to  him  or  of  a  clear 
expression '  of  a  contrary  intention.-  The  rule  since  the  stat- 
ute is  otherwise.  An  executor  no  longer  takes  beneficially 
the  residue  of  personal  property  which  is  not  disposed  of  by 
the  will.  This  rule  is  applied  also  to  a  devise  to  the  exec- 
utor of  the  testator  as  well  as  to  a  devise  to  the  executor  of 
another  person.  The  presumption  is  that  the  executor  takes 
as  a  trustee.  Thus,  where  the  testator  gives  property  to  his 
executors  expressly  for  a  purpose,  either  to  pay  debts  or  lega- 
■cies,  or  to  devote  it  to  a  charitable  enterprise,^  and  the  carry- 
ing out  of  the  purpose  does  not  exhaust  the  fund,  they  do  not 
take  the  surplus  beneficially,  but  they  hold  it  for  the  benelit 
•of  the  residuary  legatee;  or,  A.  it  is  a  gift  of  the  residue  which 
fails,  as  ^'wasi-trustees  for  the  benefit  of  the  next  of  kin.*  Accord- 
ingly, where  there  was  a  devise  of  property  to  A.  and  B.,  who 
were  also  appointed  executors,  "  in  and  for  consideration  of  their 
paying  "  the  income  to  the  lolfe  of  the  testator  for  life,  leaving 
the  fee  undisposed  of,'  or  where  a  bequest  of  a  legacy  and  also 
of  everything  to  A.  to  pay  a  debt  due  him,  with  an  appointment 
of  him  as  executor,  and  a  surplus  remained  in  his  hands  ;^  or 
a  gift  of  the  residue  to  the  executors  in  trust  in  general  terms, 
but  without  the  purpose  being  stated,'^  and  the  executors  were 
also  given  specific  legacies.^  Where  the  gift  was  to  the  ex- 
ecutors of  the  testator  and  there  was  no  residuary  clause  what- 

Johnson,  472,  479;  HoUoway  v.  Clark-  185;  Read  v.  Stedman,  26  Beav.  495; 

son,  2  Hare,  521;  Long  v.  Watkinson,  Travers  v.  Travers,  L.  R.  14  Eq.  275, 

17    Beav.  471,  474.     See  cases  cited  277;  Dixon  v.  Dixon  (1857),  24  Beav. 

ante,  %  6.34,  and  also  the  chapter  ante  129,  1.34;  In  re  Henderson,  28  Beav. 

on  Lapse  and  Substitution.  650;  Andrew  v.  Andrew,  1  Collyer, 

1 2  Black.,  p.  514.  686,  689. 

•■i  Williams  v.  Arkle,  L.  R.  7  H.  L.        &  Bird  v.  Harris,  L.  R.  9  Eq.  204. 
G  606.  6  Wright  v.  Revell,  27  L.  T.  (N.  S.) 

3  Dacre  v.  Patrickson,  1  Dr.  &  Sm.  439. 
182,  185.  "'  Buckle  v.  Bristow,  13  W.  R.  08. 

*  Barrs  v.  Fewkes,  12  Week.  R.  666;        8  Chester  v.  Chester,  12  L.  R.  Eq. 

Seymour's  Trusts,  Johnson,  472,  479;  (1871),  444,  451. 
Dacre  v.  Patrickson,  1  Dr.  &  Sm.  182, 


§  lUl.]  GIFTS    TO   PEKSOXAL   KEPKESENTATIVES,  ETC.  855 

ever,'  or  wliere  there  was  a  gift  to  the  executors  on  trusts 
which  were  held  to  be  void,'-  the  court  refused  to  permit  the 
executors  to  take  beneficially,  but  decreed  that  they  should 
take  for  the  purpose  of  the  will.^ 

§  641.  Language  whicli  may  indicate  that  the  executor  is 
to  take  in  trust. —  The  use  of  the  words  "  m  trusf''  in  a  irift 
to  an  executor  is  not  conclusive  upon  the  question  whether  he 
shall  take  beneficially  or  not,  for  that  fact  is  to  be  determined 
upon  the  whole  will.^  But  it  has  been  contended  that  where 
the  residue  is  left  to  executors  in  their  oivn  names  as  individ- 
uals in  trust  for  a  particular  purpose,  which  trust  does  not  ex- 
haust the  fund,  thev  beinof  trustees  as  well  as  executors,  thouirli 
not  entitled  to  the  unexpended  fund  as  individuals,  are  enti- 
tled to  it  as  executors,  i.  e.,  if  they  qualify  as  executors.  But 
the  distinction  is  without  value.  The  mere  fact  that  a  man  is 
appointed  both  a  trustee  and  an  executor  by  the  same  will 
does  not  permit  him  to  take  beneficially  as  an  individual,  for 
the  two  capacities  are  as  distinct  as  though  different  persons 
were  appointed.  If  the  private  and  official  character  of  these 
persons  is  to  be  distinguished,  the  point  raised  has  no  value 
whatever.'  And  it  is  immaterial,  in  this  connection,  whether 
the  gift  is  to  the  executors  in  the  plural,  or  in  the  singular,  or 
to  "  executor  and  administrator."  ^  So  where  a  gift  of  personal 
property  was  to  B.  on  the  death  of  A.,  with  a  power  in  B.  to 
appoint  by  his  will,  and,  in  default  of  his  appointment,  to  his 
executor  or  administrator,  it  was  held  that  the  executor  of  B. 
took  the  legacy  solely  for  the  purpose  of  B.'s  will.'^  And  the 
same  rule  was  invoked  though  the  legatee  has  died  in  the  life- 
time of  the  testator,  and  even  where  he  is  dead  at  the  date  of 
the  will,  and  is  applicable  where  the  gift  is  to  the  personal  or 
hgal  representatives,  a  those  words  are  construed  to  be  synony- 

'Trethewy  v.  IIely:ir,  L.  R.  1  Ch.  40.1,  502;  Mopp  v.  Elcock.  15  Sim.  508, 

I).  M,  57.  2  I'liil.  7!»7:  Dawson  v.  Clark,  15  Vcs. 

•^  Neo  V.  Nf'O,  L.  IC.  (5  P.  C.  :!«!.  Am;  Soiitliouso  v.  Hate,  ^  Vcs.  tt  lit-ji. 

3  IJarrs  v.  Fewkc^s,  12  W.  1{.  (500.  aUO;  Bottle  v.  Kiiockor,  40  i^  J.  Clu 

♦Harre  v.  Fewkfs,  12  W.  K.  000;  D.  159,  102. 

Saltrnarsh  v.  Burnett,  29  Bi-av.  474,  3  "Truvers  v.  Travcrs,  L.   11.  14  Eq. 

\if.  Gex,   F.   &    J.   279;    IIukIk's  v.  275,  277. 

KvanH,  13  Sim.  90.  "  Colli.-r  v.  Squire,  3  Rush.  407,  475; 

6R«;a<i   V.  .Sl«j<liiian  (lb.j9j,  20  Bwiv.  Stocks   v.    Doilslcy,  1  Keen,  325,  328. 


SoO  LAW    OF   WILLS.  [§  G42, 

moiis  with  administrator  or  executor.'  The  circumstance  that 
a  specilic  legacy  is  given  to  an  executor,  or,  if  there  are  sev- 
eral executors,  that  equal  legacies  are  given  each,  may  be  suffi- 
cient to  exclude  them  from  taking  a  residue  beneficially;  for 
it  is  absurd  for  a  testator  to  give  a  ma?i  a  sjiecijio  legacy  whom 
he  intends  to  tal'e  the  loliole.  These  circumstances,  coupled  with 
the  fact  that  the  residue  is  given  to  them  as  joint  tenants,  may 
be  quite  conclusive  that  they  are  to  take,  not  beneficially,  but 
in  an  olficial  capacity." 

j5  04*2.  Eeiiuests  to  executors  for  their  own  benefit. —  Not- 
withstanding the  statutory  rule  in  England  and  America,  under 
"which  the  executor  is  \\v(i'&w\\\q(S.  ^rima  facte  to  take  title  solely 
for  the  benefit  of  the  estate  which  he  represents,  it  is  clear 
that  the  testator  may  give  to  his  executor,  or  to  the  executor 
of  another  person,  as  he  may  to  any  other  person  having  a  ca- 
pacity to  take,  a  legacy  for  his  own  benefit  as  an  individual. 
According  to  tiie  most  recent  decisions,  the  testator  must  ex- 
pressly indicate  that  the  executor  shall  take  for  his  own  use 
and  benefit.  The  cases  are  not  harmonious  as  regards  Avhat 
language  will  give  the  executor  the  property  for  himself  indi- 
vidually, and  exclude  the  presumption  that  he  takes  it  virtute 
officii  for  the  benefit  of  the  estate  of  his  testator.  A  specific 
bequest  by  the  testator  "  to  my  executor.  A.,"  with  a  disposi- 
tion of  the  residue,  has  been  in  most  cases  held  to  constitute  a 
legacy  to  the  executor  for  his  own  benefit,  and  not  to  him  in 
bis  official  capacity.  The  employment  of  the  word  "  executor  " 
is  meant  simply  to  describe  the  person  whom  the  testator  in- 
tends, and  it  does  not  indicate  that  he  is  to  take  as  an  executor 
for  the  benefit  of  the  estate  of  his  testator.^ 

A  direction  in  a  gift  by  the  testator  to  his  executors  that 

1  Leak  v.  Macdowell,  33  Beav.  288;  would  meet  with  my  approval,"  the 

Trethewy  v.  Helyar,  L.  R.  4  Ch.  D.  court  held  that  the  executors  took  a 

53.  57.  mere  power  of  sale,  but  no  estate 

-  In  re  Henshaw,  12  W.  R.  1139,  84  either  as  trustees  or  individuals. 

L.  J.  Ch.  98,  100;  Saltmarsh  v.  Bar-  SBillingslea  v.  Moore,  14  Ga.  (1853), 

rett,  29  Beav.  474,  3  De  Gex,  F.  &  J.  370,  373;    Halsey  v.  Convention    of 

279,  30  L.  J.  R  Ch.  853.     In  Foster  v.  Prot.  Epis.  Church,  75  Md.  275  (1892), 

Winfield,  142  N.  Y.  327,  37  N.  E.  R.  23  Atl.  R.  781;  Kirkland  v.  Narra- 

111,  where  a  gift  was  to  "my  exec-  more,  105  Mass.  31,  32;  In  re  HoUo- 

•utors   .  .   .    in  entire  confidence  they  han's    Will,  5  N.  Y.  Supp.  342;  Fi- 

will  make  such  disposition  of  all  tlie  queira  v.  Taafe,  G  Dem.  Sur.  (N.  Y.) 

residue  as,  were  I  alive,  they  know  IGG. 


§  643.]  GIFTS   TO    TEKSONAL   EEPKESEXTATIYES,  ETC.  85  T 

they  shall  hold  for  their  own  use  and  benefit,  or  absolutely  and 
forever,  may  be  conclusive  evidence  that  the  testator  intended 
they  should  take  beneficially.'  But  the  cases  do  not  always 
require  an  explicit  indication  of  an  intention  to  benefit  the  ex- 
ecutors as  individuals  to  take  the  case  out  of  the  statute.  The 
English  cases  have  gone  very  far  in  this  direction.  So,  where 
a  devise  was  "all  the  estate  of  the  testator  to  A.,  the  executor, 
upon  trust  to  pay  the  debts,"  etc.,  which  payment  did  not  ex- 
haust the  residue,  he  was  permitted  to  take  it  for  his  own  ben- 
efit.- And  where  the  testator,  after  appointing  two  executors 
and  giving  to  each  a  specific  legacy,  and  providing  for  the 
support  of  his  wife  and  family,  gave  the  residue  to  the  execu- 
tors by  their  proper  names,  it  seemed  clear  to  the  court  that  the 
executors  were  entitled  to  take  individually.* 

§  643.  Beneficial  gifts  to  executors  or  trustees  by  name  — 
^Vheu  conditioned  upon  acceptance  of  the  oHice. —  Where  a 
legacy  is  given  to  a  person  wdiom  the  testator  also  appoints  his 
executor  or  his  trustee,  the  presumption  arises  that  the  legacy, 
whether  expressly  stated  to  be  "  for  his  trouble  "  or  not,  was 
given  solely  in  consideration  of  his  acting  as  an  executor  or  as 
a  trustee.  This  presumption  is  rebutted  if  it  shall  appear  from 
the  language  of  the  will  that  the  testator  intended  the  legatee 
to  take,  whether  or  not  he  acted  in  an  ofiicial  capacity.  But 
where  this  intention  does  not  appear,  if  the  person  nominated 
by  the  testator  does  not  accept  the  office  and  does  not  qualify 
as  an  executor  or  trustee,  the  legacy  shouhl  not  be  paid  to  him.* 

1  Wallis  V.  Taylor,  8  Sim.  241.  24.j;  49  S.  W.  R.  196;  In  re  Henshaw,  12 

Sanders  v.  Franks.  2  Mad.lock,  147.  W.  K.  1139,  U  L.  J.  Ch.  98.     In  tliis 

Contra,  Hanies  v.  Hames,  2  Kee.  G40,  case  a  money  gift  was  maile  to  the 

(i."i2.  e.xecutors  expressly  on  condition  that 

'■^  Clarke  V.  Hilton,  L.  K  2  Eij.  810,  tiiey  should    act,  and,  after    other 

81o.  money  legacies  had  been  given  and 

3  Williams  v.  Arkle,  L.  R,  7  IL  L.  the  payment  of  the  debts  of  the  tes- 

646.     See  also  Romans  v.  Mitciiell,  !.">  tator  had  been  provided,  the  resiilue 

W.  R.  (1807),  ii.Vi,  Wa,  and  7>o.s/,  ■;;  043.  wa.s  given  to  the  e.xeciit«)rs.     In   a 

*  liothmahler  v.  Cohen,  4  Ues.  (S.  C.)  codicil  a  jiarcel  of  real  jtropcrty  was 

F.([.  21'i;  Kirkland  v.  Narramore,  lO.j  devised  to  tlicm   in  trust  for  the  tes- 

MuHH.  31,  32;  In  re  (Jardncr,  01  I^  T.  tator's  cliildrcn.  Th«(  court  lield  they 

(N.  S.)  .'».'i2;  Romans  v.   .Mitclicll,   1.")  to<ik  the  n-sithu!  Imnelicially.     Long 

W.  R.  ."i2;    Angcrman    v.    Ford,   29  v.  (Jardiicr.  07  L.  T.  .')r)2;   Harrison  v. 

Ikaiv.  319;  Hawkins' Trust.  33  Hcav.  Harrison,   2   H.   &    M.   237;  Fugo  v. 

570;  Ji'wis   v.  I.jiwr.-m<'.  I>.  I{.  8   Ffj.  Fuge.  27  1-  K.  Ir.  .'>9. 
mr,,  319:  H.irrix  v.  Harris  iKv..  1H99., 


S5S  LAW    OF    WILLS.  [§  643. 

And  {\w  iMvsumiitidn  that  a  legacy  to  one  who  is  also  nomi- 
nated as  an  executor  is  conditional  on  his  acceptance  of  the  of- 
iice  is  strengthened,  if  not  rendered  conclusive,  by  the  fact  that 
in  the  will  the  testator  states  that  it  is  to  remunerate  him,  or 
that  it  is  in  lieu  of  his  commissions  or  statutory  compensation, 
or  that  it  is  for  his  care  and  trouble  ^  in  performing  the  duties 
of  his  oiiice."  But  the  presumption  which  arises  where  the  will 
is  silent  maj"  be  rebutted.  It  is  therefore  important  to  deter- 
mine what  language  employed  by  the  testator  will  be  sufficient 
to  rebut  this  presumption,  and  to  show  that  the  legacy  to  the 
executor  was  not  upon  a  condition  that  he  should  qualify  and 
act  as  executor.  It  would  seem  that  giving  the  legacy  to  tho 
executor  wdiere  he  is  named,  not  as  an  executor^  but  as  an  indi- 
vidual^ would  be  conclusive  proof  of  an  intention  that  he  shall 
take  in  any  event  as  an  individual.'  So,  also,  if  the  legatee, 
though  an  executor,  is  described  as  the  friend  of  the  testator,  or 
if  the  gift  is  given  expressly  as  a  token  of  regard,  so  that  it  ap- 
pears that  the  motive  of  the  gift  was  friendship  and  affection 
towards  the  legatee  rather  than  remuneration  for  services  to 
be  rendered  by  him  as  an  executor,  the  mere  fact  that  a  legatee 
is  also  an  executor  will  not  make  the  legacy  to  him  conditional 
upon  his  acceptance  of  the  office.  So  a  legacy  given  by  the 
testator  to  his  friend  A.,  who  w^as  also  appointed  an  executor,*  or 
to  "  my  friend  A.,  of  the  town  of  M.,  a  banker's  clerk  and  also 
my  executor,"  ^  will,  by  the  implication  that  the  motive  prompt- 
ing the  legacy  was  friendship,  cause  the  legatee  to  receive  the 
legacy,  even  though  he  may  not  qualify  as  the  executor.^  Other 
circumstances  sufficient  to  rebut  the  presumption  that  a  legacy 
is  conditional  upon  acceptance  of  the  office  by  the  executor  are 
that  it  w'as  given  among  other  legacies,''  or  that  it  was  to  be 
given  to  an  executor  after  the  death  of  a  tenant  for  life,^  or  the 

1  Hawkins'  Trust,  33  Beav.  570.  ^  See  also  Read  v.  Devaynes,  3  Bra 

2  Morris  v.  Kent,  2  Edw.  Ch.  (N.  Y.)    C.  C.  95;  In  re  Mainwaring,  L.  R  43 
174.  Ch.  D.  643,  59  L.  J.  Ch.  C3,  38  W.  R 

sStackpole  v.  Howell,  13  Ves.  417;  412. 

Chassaing  v.  Duraud,  85  Md.  420,  37  ^  Calvert  v.  Sebbon,  4  Beav.  422. 

Atl.  R.  362.  8  In  re  Reeve.  46  L.  J.  Ch.  412,  36  L. 

4Bubb  V.  Yelverton,  L.  R.  13  Eq.  T.  (N.  S.)  906;  Jewis  v.  Lawrence,  L. 

131.  R.  8  Eq.  345,  347. 

5  In  re  Denby,  3  De  Gex,  F.  &  Jo. 
350. 


§§  645,646.]       GIFTS    TO    PERSONAL   EErKESEXTATIYES,  ETC.  859 

circumstance  that  unequal  gifts  are  made  to  two  or  more  exec- 
utors.^ 

Assuming  that  the  gift  is  upon  the  implied  condition  that 
the  legatee  shall  qualify  and  act  as  an  executor,  it  is  impor- 
tant, in  the  event  of  his  death  before  the  payment  of  the  leg- 
acy, to  determine  what  acts  on  his  part  sufhce  to  constitute  a 
sufficient  performance  of  the  condition.  He  must  give  un- 
equivocal evidence  of  an  intention  to  act  as  executor  before 
his  representatives  can  claim  on  his  death.  An  application 
for  the  probate  of  the  will  by  the  legatee  is  conclusive  proof 
of  his  intention  to  qualify  as  an  executor.  If,  having  insti- 
tuted proceedings  to  procure  letters  testamentary,  the  legatee 
dies  before  they  are  granted,  his  representatives  are  entitled 
to  the  legacy.- 

^  Jewis  V.  Lawrence,  L.  R  8  Eq.  condition  that  he  shall  act  as  execu- 

345,  347.  tor  will  draw  Interest  from  the  date 

•  Scofield  V.  St.  John,  65  How.  Pr.  upon  which  he  qualifies.    In  re  Gar  J- 

(N.  y.)  292;   Harrison  v.  Eowley,  4  ner,  61  L.  T.  (N.  S.)  552;  Long  v.  Gard- 

Ves.  212;  Lewis  v.  Mathews,  L.  R.  8  ner,  Id. 
Eq.  277.    A  legacy  to  a  person  on 


CHAPTER  XXXII. 


TESTAMENTARY  ESTATES  IN  FEE  TAIL  — THE  CONSTRUCTION 
OF  "HEIRS  OF  THE  BODY"  AS  WORDS  OF  LIMITATION. 


§  644.  Estates  tail  at  the  common 
law. 

04.1  Language  by  which  an  estate 
tail  may  be  created. 

G4G.  An  estate  in  fee  tail  may  be 
created  by  informal  words. 

G47.  The  words  "  male  heirs  "  cre- 
ate an  estate  tail. 

648.  Limitations  in  special  fee  tail. 

649.  The  word  "  son  "  as  a  word  of 

limitation. 

650.  Estates  tail  by  implication. 


§  051.  Words  directing  an  equality 
of  division  among  lieirs  of 
the  body. 

AVords  of  limitation  and  in- 
lieritance  added  to  "heirs  of 
the  body." 

Estates    tail   in    the    United 
States. 
654.  Statutory   regulations  of    es- 
tates   tail    in   the   United 
States. 


052. 


053. 


§  644.  Estates  tail  at  the  common  law. —  It  is  impossible 
in  this  work  to  treat  at  full  length  of  the  rules  regulating  es- 
tates in  fee  tail.  They  will  be  found  fully  treated  in  those 
treatises  which  have  for  their  object  the  discussion  of  the  ele- 
ments of  the  law  of  real  property.^  It  is  sufficient  here  to  say 
that  estates  tail  owe  their  ori<^in  to  the  Statute  of  Westmins- 
ter II,  15  Edw.  I,  c.  1,  commonly  called  the  statute  de  donis. 
Prior  to  the  passage  of  this  statute  a  limitation  of  a  fee  to  A. 
and  to  the  heirs  of  his  body  was  regarded  as  creating  a  fee- 
simple  conditional,  i.  c,  a  fee  on  condition.  If  A.  died  with- 
out issue  the  lands  reverted  to  the  grantor,  but  as  soon  as  he 
had  issue  the  condition  on  which  he  held  the  fee  was  per- 
formed, and  he  had  a  fee  simple  absolutely,  which  he  could 
alienate  or  charge  and  so  bar  his  issue,  and  over  which  the 
grantor  had  no  control.'^  This  statute  in  terms  provided  that 
the  estate  granted  to  A.  should  be  protected  to  his  issue,  and 
at  the  same  time  it  deprived  the  first  grantee  of  all  power  to 
alienate  the  fee  of  the  estate.  Its  main  object  was  to  reserve 
in  the  grantor  and  his  heirs  the  reversion  of  the  fee  simple. 


1  4  Kent,  Com.,  pp.  12,  18;  2  Black- 
Com.,  p.  114. 


2  2  Black.  Com.,  p.  111. 


§  046.] 


TESTAMEXTAKY    ESTATES   IX   FEE    TAIL. 


SGI 


The  fee  was  in  abeyance  until  an  indefinite  failure  of  issue 
took  place,  when  it  reverted  to  the  grantor  or  his  heirs. ^ 

The  perpetuity  thus  established  Avas,  as  well  may  be  be- 
lieved, injurious  to  the  commerce  in  land;  but  though  numer- 
ous attempts  were  made  in  parliament  to  repeal  the  statute,  it 
was  not  until  the  twelfth  year  of  Edward  IV  that  common 
recoveries  were  invented,  by  means  of  which  the  estate  tail 
could  be  aliened.  This  method  of  conveying  an  estate  tail, 
which  was  the  only  method  down  to  the  beginning  of  the  pres- 
ent century,  in  England,  conveys  a  fee  simple  absolutely." 

§  645.  Language  by  which  an  estate  tail  may  be  created. — 
A  devise  to  a  person  and  the  heirs  of  his  body  creates  an  es- 
tate tail  general.  If  the  devise  is  to  a  person  and  the  heirs  of 
his  body  by  a  particular  marriage,  an  estate  tail  special  is  cre- 
ated, and  descends  to  the  heirs  of  his  body  by  that  marriage. 
And,  also,  an  estate  in  tail,  general  or  special,  may  be  limited 
either  to  the  heirs  male  or  female.^ 

§  646.  An  estate  in  fee  tail  may  be  created  by  informal 
words. —  The  proper  and  technical  language  required  to  create 
an  estate  tail  is  a  limitation  to  the  heirs  of  the  body,  and  this 


i.See  Willion  v.  Berkely,  Plowd. 
233.  23.5,  247. 

2Taltarum's  Case,  5  Co.  Lit.  19  B.; 
Portington's  Case,  5  Co.  35.  In  con- 
struing the  statute  tlie  courts  held 
that  the  donee  no  longer  had  a  con- 
ditional fee  which  became  absolute 
as  so(jn  as  issue  was  born,  but  that 
he  had  a  new  estate  called  a  fee  tail, 
with  an  interest  in  the  lieirs  of  his 
body  which  he  could  not  alfect,  and 
a  reversion  in  fee  on  an  indefinite 
failure  of  his  issue  in  the  donor.  2 
Inst.  33r>. 

'Smith  V.  Greer,  r,  S.  U.  1)11.  ss  Ala. 
414;  Flinn  v.  Davis,  IH  Ala.  132,  134; 
Fellows  V.  Tann.  9  Ala.  (1HI«).  1003: 
Mfxxly  V.  Walker.  3  Ark.  (isn),  147; 
Myar  v.  Snow,  4!»  Ark.  12.">,  4  S.  W. 
It  381;  Johnsfjn  v.  Joiinsfjn,  2  Met. 
(Ky.)  331;  Penningtfin  v.  P(»nning- 
t^jn.  17  Atl.  R  329.  70  Md.  4IH;  I'rcs- 
cott  V.  Prcwotts  Heirs,  10  ]i.  Moii. 
(40Ky.).'W;  Lachland'alJeirs  v.D«.wn- 


ing.  11  B.  :Mon.  (Ky.)  33;  McMeekin 
V.  Smith  (Ky.  1893),  21  S.  W.  R. 
353;  Riggs  v.  Sallj'.  15  Me.  (3  Shep., 
18391,  408;  Fisk  v.  Keene,  35  Me.  349; 
Spencer  v.  Chick,  70  Me.  347;  Stans- 
bury  v.  liubner,  20  Atl.  R.  904,  73 
Md.  228;  Wells  v.  Beall,  2  Gill  &  J. 
(Md.)  458;  Brown  v.  Addison  Gilbert 
Hospital,  155  Mass.  323,  29  N.  E.  R 
625;  Williams  v.  Hichborn,  4  Mass. 
189;  Brown  v.  Rodgers  (Mo.),  28  S. 
W.  R  G30;  Doty  v.  Teller.  54  N.  J.  L. 
1(53,  23  Atl.  R  944;  Kcnnc.ly  v.  Keii- 
noily,  29  N.  J.  Law.  ISO;  Woudell  v. 
Crandaii,  1  N.  Y.  491;  Shalters  v. 
Ladd.  141  Pa.  St.  349.  21  Atl.  R  59(;. 
28  W.  N.  C.  33;  Linn  v.  Alexander. 
59  Pa.  St.  43;  Cooper  v.  Coursey.  3 
Coldw,  (43  Tenn.,  1807),  41(5;  Man- 
chester V.  Durfee,  5  R  I.  (1857),  549; 
In  re  Kelsf)'s  I-:Htate.  09  Vt.  272.  274, 
37  Atl.  It.  717;  Sydnor  v.  Sydnor.  2 
Muuf.  (Va..  1811;,  203;  2  Black.  Com.. 
I).  111. 


802 


LAW    OF   WILLS. 


[§  647. 


estate  cannot  be  created  without  words  of  procreation  in  a  deed 
at  the  common  law.  But  in  construing  wills  the  rule  is  other- 
"wise.  Thus,  a  limitation  to  A.  and  his  offsjrnng,^  or  to  A.  and  his 
family,  according  to  seniority,-  to  A.  et  aemlni  suo^  to  A.  and 
his  heirs  of  the  third  generation,*  to  A.  and  his  bodily  heirs,'  to 
A.  and  his  heir  (in  the  singular)  lawfully  hcgotten^'  or  to  A.  and 
his  "  legal  heirs,"  "^  or  to  A.  and  the  heir  of  the  body  of  A.  who 
may  he  living  at  his  death^  or  to  A.  and  the  heir  of  his  body,  in 
the  singular,^  gives  A.  an  estate  in  tail.  So,  also,  Avhere  the 
word  "  issue  "  is  used  as  a  word  of  limitation,  meaning  simply 
the  "heirs  of  the  body,"  as  to  A.  and  his  issue,  they  take  by 
descent,  and  it  will  be  an  estate  in  tail  in  A,^°  And  the  same 
rule  of  construction  is  applied  to  a  limitation  to  children,'^ 
where  it  clearly  appears  that  the  testator  has  used  the  word 
"  children  "  as  equivalent  to  "  heirs  of  the  body,"  taking  in  the 
"whole  line  of  lineal  desccndants.'- 

§  647.  The  words  "  male  heirs  "  create  an  estate  in  tail. 
A  devise  to  the  "  male  heirs  "  of  the  testator,^'  to  A.  and  his 
7n.ale  heirs^^  to  A.  and  his  heirs  male  who  attain  the  age  oftwenty- 


'  Young  V.  Davis,  2  Dr.  &  Smale, 
167.  See  also  Barber  v.  Railroad  Co., 
166  U.  S.  8S,  89;  Allen  v.  Markle,  36 
Pa.  St.  117. 

2  Lucas  V.  Goldsmid,  29  Beav.  6.j7. 

3 Co.  Lit.  9  b;  2  Black.  Com.,  p.  114. 

<  Naylor  v.  Loomis,  9  Ohio  Cii-.  Ct. 
R  96,  2  Ohio  Dec.  114;  Mortimer  v. 
Hanley,  6  Ex.  47,  3  De  Gex  &  Smale, 
316. 

5  Barret  v.  Beckford,  1  Ves.  521. 

« Hall  V.  Vandegrift,  3  Binn.  (Pa., 
1811),  374;  Dubber  v.  Trollope,  Amb. 
4.53, 8  Vin.  233,  pi.  13;  Whiting  v.  Wil- 
son, 1  Buls.  219.  So  held  in  Church  v. 
Myatt,  jMoore,  637,  Co.  Lit.  20b,  9,  27. 
See  also  Nanfan  v.  Legh,  2  Marsh. 
107,  7  Taunt.  85,  where  the  limitation 
was  et  hceredibus  suis  legitime  pro- 
creatis. 

7  Perry  v.  Kline,  12  Gush.  (Mass.) 
123,  125.  But  see  contra,  Mathews  v. 
Gardner,  17  Beav.  254;  Simpson  v. 
Ashworth,  6  Beav.  412,  where  the 
words  "  lawful  heirs  "  are  used. 


8  Richards  v.  Lady  Abergaveny,  2 
Vernon,  32. 

i'Pawsey  v.  Lowdall,  Styles,  249, 
273. 

10  See  pos#,  §670. 

^^Ante,  §580. 

i-iSeibert  v.  Wise,  70  Pa.  St.  147, 
149;  Knoderer  v.  Merriman  (Pa., 
1887),  7  Atl.  R.  152;  Bone  v.  Tyrrell, 
113  Mo.  175,  20  S.  W.  R.  796;  Wheat- 
land V.  Dodge,  10  Met.  (IMass.)  502; 
Nightingale  v.  Burrell,  15  Pick. 
(Mass.)  104;  Haldeman  v,  Haldeman, 
40  Pa.  St.  29;  Merry  man  v.  Merry- 
man,  5  Munf.  (Va.)  440. 

13  Ford  V.  Lord  Ossulton,  11  Mod. 
189;  1  Wash.  R.  P.  110. 

14  Dawes  v.  Ferers,  2  P.  W.  1 ;  Ba- 
ker V.  Wall,  1  Lord  Ray.  185;  Doe  d. 
Lindsey  v.  Col  year,  11  East,  548,  563; 
Hamilton  v.  Hampstead,  3  Day 
(Conn..  1808S  332;  Eraser  v.  Chene,  3 
Mich.  (1852),  81.91;  Cooper  v.  Cooper, 
6  R.  L  201:  Brownell  v.  Brownell,  10 
R  L  509, 513,  514;  8  Vin.  Ab.,  A.,  pL  13; 


§  G47.]  TESTAMENTAKY    ESTATES    IN    FEE    TAIL.  803 

one^  to  A.  and  his  heir  male,  ia  the  singular,"  or  to  A.  and  his 
oldest  heir  male,^  creates  an  estate  tail  male  in  A,,  though 
words  of  procreation  are  not  employed.  The  same  rule  will 
apply  to  a  limitation  to  A.  and  his  heirs  female.  If  the  devise 
is  to  A.  for  life,  and  after  his  death  to  his  heirs  male  or  heirs 
female  in  fee.  the  first  taker  will  take  a  fee  tail  special  by  the 
operation  of  the  rule  in  Shelky's  case.^  In  all  such  cases  the 
words  "  of  the  body  "  will  be  inserted  by  implication.  This 
construction  is  strengthened  by  a  devise  over  upon  an  indefi- 
nite failure  of  issue  or  upon  an  indefinite  failure  of  an  heir  male.^ 
Whether  a  limitation  to  the  next  heir  male  will  enable  him  to 
take  by  descent  or  purchase  depends  upon  nice  distinctions  of 
language.  If  the  devise  is  to  A.  for  life,  remainder  to  his  next 
heir  male,  simply,^  or  to  A.  and  to  \i\&  first  male  heir"'  or  to  A.  and 
his  wife  for  life,  remainder  to  the  next  male  heir  of  their  bodies,^ 
A.  takes  an  estate  in  fee  tail  special  by  the  operation  of  the 
rule  in  Shelley's  case.  But  if  the  testator,  after  a  life  estate  in 
the  ancestor,  has  added  words  in  a  devise  to  the  next  heir  male, 
indicating  that  he  intends  that  person  to  be  a  new  stock  of  in- 
heritance, he  who  is  the  next  heir  male  at  the  death  of  the  first 
taker  will  take  as  persona  designata.  So  where  the  land  is  de- 
vised to  A.  for  life,  and  after  his  death  to  his  next  heir  male, 
and  to  the  heirs  male  of  the  hodij  of  such  heir  male,  the  person  thus 
designated  as  next  heir  male  will  take  a  contingent  reuuiinder 
by  purchase,  which  is  defeated  by  his  death  before  his  ances- 
tor, in  which  event  he  can  never  be  an  heir,  but  vesting  in  him 
absolutely  on  the  death  of  the  ancestor."    And  the  same  rule 

I  Preston  on  Estates,  213,314,  530;  Wells,  1  Lord  Raymoiul,  IS,"):  South- 
Hawkins  on  Wills,  p.  173;  3  Black,  coto  v.  Stewell,  1  Modern,  2'H),  ^'37; 
Com.,  p.  ll.j;  Co.  Lit.  27a.  Wrif,'lit  v.  Vernon,  4  Jur.  (N.  S.)  113, 

>  Doe  d.  Tremewen  v.  Permewen,    2  Drewry,  449,  431.  7  IL  L.  C.  3.");  AlU 

II  AdoL  &  Ellis,  431.  Rood  v.  Blake,  L.  R.  7  E.x.  3(53;  Asli- 
2  Oslxjrne  v.  Slirieve,  3  Mason,  C.  C.    enhurst's  Case,  Hob.  34. 

(182.'i),  3'Jl;  Brounell  v.  Brownell,  10  » Osborne  v.  Shrievo,  3  Mason.  C.  C. 

It.  L  rm,  513;  Canedy  v.  llaskins,  13  391;  Malcolm  v.  Malcolm,  3  Cusli.  (57 

Met.  (Mass.)  3M'.),  402;  ]{la<-kl>urn  v.  iMass.,  \H\\)),  472;    Duo  d.  Winter   v. 

Stabl.ts,  3  Ves.  &  B.  307,  30'J;  Lisle  v.  Penatt,  5  Barn.  &  Cress.  O.j,  3  iM.  «fc 

Puliin.  .Stran-e,  729,  731.  Sc.  OO."), 

»Cuiro  V.  Milk,  10  .Met.  (.',1  Mass.)  «>  Hurley's    Case.   1   Vent.    230;    10 

306,  :W)\  Canedy  v.   Haskins,  Hiipm.  Viner,  .\l)r.  (II.).  pi.  4,  n. 

*  DcK'd.  Lindsjiy  v.  C<jly<'iir,  1 1  lOast,  "  Duiiiter  v.  Tnillope,  Anib.  ir)3. 

6-48,  503;  Bri>\vnell   v.    Brownell,    10  »  Kdberts  on  (iavelkind,  122. 

K.   L   509,   513.     See  uIbo    Baker  v.  » Archer's  Case,  1  Uep.  00. 


804  LAW   OF   WILLS.  [§  G48. 

a])pli(\s  if  the  added  limitation  is  to  tlic  heirs  general  of  the 
next  heir  male.* 

g  G48.  Liinitsitions  in  special  fee  tail. —  A  devise  to  A.  and 
?u's  /airs  hy  h/'s j^rcscnt  wife  creates  an  estate  tail  special  in  A. 
from  Avhich  the  wife  is  excluded,  and  only  the  issue  engen- 
<lered  between  them  can  take.-  But  where  there  is  a  limita- 
tion to  tlie  heirs  of  the  body  of  B.  and  C.  lawfully  begotten, 
if  they  are  man  and  wife  it  is  an  estate  tail  in  both,  and  the 
ohlest  son'  or  the  heirs  of  the  body  of  rit/icr  take,  though  not 
begotten  liy  or  on  the  other;  on  the  other  hand,  if  the  devise 
be  to  the  wife  of  A.  and  her  heirs  by  A.  begotten,  she  and  her 
heirs  by  A.  take  an  estate  in  tail  and  he  is  excluded.^  But,  in 
any  event,  in  order  that  an  estate  in  special  fee  tail  shall  bo 
created  in  the  issue  of  any  two  persons,  they  must  be  husband 
and  wife,  or  they  must  be  persons  who  can  possibly  become 
such.  If  an  estate  is  devised  to  A.  and  B.  and  the  heirs  of 
their  bodies,  and  they  cannot  become  husband  and  wife,  either 
because  they  are  of  the  same  sex,  because  they  are  related 
Avithin  the  prohibited  degrees,  or  because  one  is  deceased,  each 
takes  but  an  estate  for  life.  On  the  other  hand,  if  the  parties 
can  marry,  it  is  not  material  that  they  are  at  the  date  of  the 
death  of  the  testator  married  to  others,  for  their  respective 
partners  may  die,  and  they  may  intermarry. 

If  the  persons  are  in  fact  husband  and  wife  at  the  date  of 
the  death  of  the  testator,  the  fact  that  the  birth  of  children  is 
impossible  /;i  reruin  natura  does  not  defeat  the  estate  in  tail. 
An  estate  in  tail  after  the  possibility  of  issue  is  extinct  is  then 
created  in  both.  So,  also,  a  similar  estate  exists  where  an  es- 
tate in  special  tail  is  attempted  to  be  created  in  a  husband  and 
wife  and  their  issue,  and  one  dies  wdthout  leaving  issue,  but 
leaving  the  other  surviving.  The  survivor  then  has  simply  a 
life  estate.  But  such  an  estate  can  only  be  created  by  the 
death  of  one  party;  never  by  the  procurement  of  a  divorce.* 

1  Willis  V.  Iliscox,  4  My.  &  Cr.  197.  (N.  S.)  1113,  2  Black.  Com.,  p.  113; 
Contra,  Canedy  v.  Haskius,  13  Met.  Welliver  v.  Jones,  166  111.  80,  46  N.  E. 
(54  Mass.,  1847),  389,  403,  where  the    R.  712. 

property  was  limited  to  the  heirs  ^  Stephens  v.  Britridge.  1  Lev.  36; 
general  of  the  "eldest  male  heir."         Davis  v.  Hayden,  9  Mass.  514. 

2  Wheart  v.  Cruser,  49  N.  J.  L.  475,        *  Deun  v.  Gillot,  2  T.  R.  431. 

15  Atl.  R.  36;  Wright  v.  Vernon,  2  ^  flie  importance  of  the  rules  in 
Drewry,  439,  7  H.  L.  Cas.  35,  4  Jur.    the  text  is  manifested,  as  it  has  been 


§  649.]       TESTAMENTARY  ESTATES  IX  FEE  TAIL.  805 

In  conclusion  it  sbould  be  said  the  rule  in  Shelly's  case  does 
not  apply  to  a  remainder  to  the  heirs  of  the  body  of  A.  to  be 
begotten  on  her  b}'  her  husband.^  But  the  rule  has  been  ap- 
])lied  to  a  remainder  to  the  heirs  of  the  body  of  the  wife  by  a 
particular  husband.- 

§  640.  TheTVord  ^<^son  "  as  a  word  of  limitation. — Whether 
the  wonl  "son"  shall  or  shall  not  be  regarded  as  a  word  of 
limitation,  or  as  a  word  of  purchase,  depends  wholly,  as  in  the 
case  of  the  Avord  "children,"  upon  the  intention  of  the  testator 
as  apparent  from  the  will.  In  an  early  case  where  the  devise 
was  to  A.  in  indeterminate  language,  and  if  he  dies  "  not  hav- 
ing  a  son  "  (meaning  "  not  leaving  a  son  ")  then  over,  the  court 
held  that  "dying  without  a  son,"  the  term  being  nomen  col- 
lectivum^  was  equivalent  to  "dying  without  issue,"  and  meant 
an  indefinite  failure  of  issue,  giving  the  parent  by  implication 
an  estate  in  tail  male.^  Here  the  word  "  son  "  was  a  word  of 
limitation  synonymous  Avith  "  issue,"  or  "  male  heir."  In  most 
English  cases  it  is  not  regarded  as  designatio  personce,  pointing 
out  who  is  to  take  under  the  will,  but  rather  to  point  out 
those  who,  as  issue  or  male  descendants,  are  to  take  by  descent 
from  the  ancestor,  giving  him  in  effect  an  estate  in  tail  male.* 
But  a  devise  to  "  A.  for  his  life,  and  after  his  death  to  his  sons 
and  their  heirs  forever  equally ^^^  does  not  create  a  fee  tail  male 
in  tlie  state  of  Virginia;*  and  even  in  England  a  limitation 
to  A.  and  the  heirs  of  his  body,  to  be  enjoyed  l>y  his  first,  sec- 
held  that  a  statute  converting  the  ^  B3-field's  Case,  citing  King  v.  Mel- 
"fee  tail  general  into  a  fee  simple  ling,  1  Vent.  225, 231;  Milliner  v.  Rob- 
estiite  has  no  application  to  a  fee  tail  inson,  1  Moore,  GH2,  jil.  UoO;  Kobiii- 
si)ecial."  Pennington  v.  Pennington,  son  v.  l^jbinson,  1  Burr.  IJS,  ;j  B.  P.  C. 
17  Atl.  R  :i29,  70  Md.  41H.  The  con-  Toinl.  IHO;  (Jarrod  v.  (Jarrod,  2  B.  & 
traryLs  held  where  the  statute  simply  A.  H7;  Andrew  v.  Andrew,  L.  li,  I 
has  reference  to  an  estate  in  tad.     Cii.  D.  410. 

Welliverv.  Jones,  160  111.  80,  46  N.E.  «  Mellish  v.  Mcllish,  2  Barn.  & 
R  712.  Cress w.   r)20.  r)2;{-r»2r),  y  Dow.  &  Ky. 

'Gfwsage  V.  Taylor,  Styles, .'{25;  and  HOI.  Where  the  devise  was  to  "  A. 
com|»ftre  Ii^)l)ins<)n  v.  Wharrey,  11  and  her  son,  but,  if  she  Iiad  morn 
Wils.  125,  111,  \viii(;h  is  contni  to  tlie  than  one  dauglitcr.  to  tiic  eldrst ;  but 
text.  if  no   cliiidrcii   at    her   death."  tlu'n 

2AI[«iss   V.   Watkins,  H   T.  H.  51(;.     over,  A.  ti>ok  an  estate  in   tail   male. 
The  ilistinctif>ti  iM-twjM'ii  heirs  on  the        *  Walker's  Adm'r  v.  Lewis,  DO  Va, 
Ixxly  and   heirs  o/ the   Ijody  is  lino     57K,  IDS.  E.  R  20b. 
aud  eludes  th<.-  ordinary  intelle(,'t. 
05 


SGO  LAW    OF   WILLS.  [§  649. 

oml,  third,  etc.,  so?is,  gives  A.  an  estate  for  life,  and  his  sons 
take  as  purchasers.^ 

The  same  question  that  has  arisen  as  to  the  meaning  and 
effect  of  the  word  "  sons  "  has  also  arisen  in  construine:  the 
words  "  eldest  so7i."  If  these  latter  words  are  words  of  lim- 
itation, they  are  synonymous  with  "  male  heir  of  the  body," 
and  the  father  will  take  an  estate  in  special  fee  tail  male.  If 
they  are  words  of  purchase  they  simply  designate  a  person 
who,  at  the  death  of  the  father,  should  be  the  eldest  son  then 
living,'  and  he  will  take  a  vested  estate  in  fee  simple  as  a  pur- 
chaser. It  was  at  one  time  held  that  in  a  devise  to  A.  for  life, 
with  remainder  to  his  ^^  eldest  son"  and  a  devise  over  on  A.'s 
death  lolthoutlaicful  issue,  that  A.  took  an  estate  tail  male,  the 
words  "eldest  son"  being  words  of  limitation,  and  the  rule  in 
Shelley's  case  being  applied.'^  This  early  case  has  been  sub- 
sequently followed.*  The  case  in  which  the  words  "eldest 
son  "  were  construed  as  words  of  limitation  fixed  a  meaning 
so  contrary  to  the  general  and  primary  sense  of  the  words  that 
in  a  subsequent  consideration  of  the  same  will  at  considerable 
length  in  the  House  of  Lords  nearly  a  century  later,  the  earlier 
rule  was  condemned.  It  was  then  determined  that  the  words 
*'  eldest  son,"  or  "  first  "  or  "  other  sons,"  were  not  primarily 
"words  of  limitation,  but  that  they  designated  the  person  who 
should  take  as  purchaser  in  remainder,  and  that  he  took  as  a 
purchaser.'  Xor  will  the  fact  that  the  testator,  after  devising 
land  to  A.  for  life  with  a  remainder  to  his  eldest  son,  provides 
for  an  indefinite  failure  of  issue,  alter  this  construction  under 
existing  rules  to  make  the  estate  a  tail  male,  as  it  would  be 
ordinarily  where  there  is  a  devise  over  on  an  indefinite  fail- 
ure of  issue  of  the  first  taker.^    And  in  a  case  of  a  devise  to 

1  Law  V.  Davis,  Strange.  849.  *  Lewis  v.  Puxley,  16  Mee.  &  WeL 

-  Gardiner  v.  Guild,  106  Mass.  25, 28.  733,  7-10  (18-17) ;  and  Forsbrook  v.  Fors- 

3  Cliorlton  V.  Craven,  3  Dow.  &  Ry.  brook,  L.  R.  3  Ch.  App.  93,  98  (1867), 

808,  and  Simpers  v.  Simpers,  15  Md.  where    the    limitation  was    to    the 

160.     And  a  devise,  prior  to  the  stat-  eldest  sons  of  two  life  tenants,  who 

ute  abolishing  the  rule  in  Shelley's  should  take  for  their  lives,  and  "  so 

case,  to  A-  for  life,  "  and  at  his  death  on  the  eldest  sons  of  the  two  families 

to  descend  to  the  eldest  male  heir  of  forever.'' 

his  body,  and  on  failure  thereof  to  hi«  ^  Parker  v.  Tootal,  11  H.  L.  Cas.  143. 

heirs  general,''  is  within  the  rule.  ^  Doe  d.  Burrin  v.  Charlton,  1  Scott 

Goodrich  v.  Lambert,  10  Conn.  (1835),  N.  R  290,  302-308,  1  M  &  Gr.  429. 
449.    See  also  cases  post,  %  661. 


§  050.] 


TESTAMENTARY  ESTATES  IN  FEE  TAIL. 


867 


the  eldest  son,  with  a  limitation  over  ^'■vyiihout  having  a  son,''^ 
this  will  not  alter  the  construction,  because  it  is  simply  equiva- 
lent to  death  without  leaving  such  eldest  son,  since,  if  the 
fatlier  die  without  any  son,  there  can  of  course  be  no  eldest 
son  surviving  him.' 

§  650.  Estates  tail  by  implication  on  an  indefinite  failure 
of  issue. —  If  the  testator  devise  an  estate  to  A.  and  his  heirs, 
and  couple  this  with  a  devise  over  of  the  property  on  the  first 
taker's  death  without  issue,  or  equivalent  words,  the  hrst  taker 
takes  an  estate  in  fee  tail.  This  is  of  course  assuming  that  the 
testator  has  used  the  words  "  dying  without  issue  "  as  meaning 
an  indefinite  failure  of  issue."  In  all  cases  where  there  is  a 
devise  over  after  the  devise  in  fee,  upon  the  failure  of  issue  or 
death  without  issue  of  the  first  devisee,  the  word  "  heirs  "  will 
be  construed  to  mean  "  heirs  of  the  body,"  and  the  first  taker 
will  take  an  estate  tail,  with  a  contingent  remainder  over  to 
take  effect  upon  a  total  extinction  of  his  issue  at  any  time.  This 
has  been  the  rule  in  England  for  centuries,'  and  is  also  the 
rule  in  the  United  States.* 


1  Bennett  v.  Bennett,  2  Dr.  &  Sm. 
266;  Andrew  v.  Andrew,  L.  R.  1  Cli. 
D.  410,  412. 

2  In  the  absence  of  statute,  as  is 
elsewhere  explained  in  this  work,  a 
limitation  over  in  case  of  the  death 
of  the  first  taker  without  issue 
means  an  indefinite  failure  of  is.sue. 
though  this  presumption  is  never 
conclasive.  and  may  be  rebutted  by 
language  in  the  context  indicating 
that  the  testator  used  the  words  to 
denote  a  definite  failure  of  issue,  i.  e., 
a  failure  of  issue  siirvivivfj  the  pri- 
mary devisee.    Post,  %  >i^A  et  seij. 

a  Sunday's  Case,  9  Co.  127  B. ;  Robin- 
son's Case,  1  Ventris,  2;{i);  Clark's 
Case,  1  Rolle's  Abr.8:39.  pl.4.Mo<jr.  59:}; 
Tracy  v.  Glover,  cited  ;i  Leon,  i:iO,  pi. 
183;  Dfje  d  Neville  v.  Rivers,  7  T.  R. 
276;  Doe  d.  Ellis  v.  Ellis,  9  East,  :W2; 
Soulle  v.  Garrard,  Cro.  Eliz.  W."); 
C'hadfx'k  v.  Cowley,  Cro.  Jac  09.'); 
Browne  v.  Jervis,  id.  290. 

«  Durden  v.  liurns.r,  Ala.  (ISl  J).nr,S; 
Moo<Jy  v.   Walker,   'i   Ark.   (3   Pike, 


1840).  147;  Myar  v.  Snow,  49  Ark.  125. 
4  S.  W.  R.  aHl;  Neville  v.  Northrop, 
51  Conn.  ;j.'>;  St.  John  v.  Dann.  66 
Conn.  401,  84  Atl.  R.  110,  112;  Hud- 
son v.  Wadsworth,  8  Conn.  (1881),  348, 
360;  Main  waring  v.  Taber,  1  Root 
(Conn.,  1789),  79;  Blair  v.  Vanblar- 
cum,  71  111.  290;  Summers  v.  Smith, 
21  N.  E.  R.  191,  127  111.  645;  Fisk  v. 
Keene,  35  Me.  349,  355;  Pratt  v. 
Flamer,  5  Harr.  &  J.  (Md.,  1822).  10; 
Chew  v.  Chew.  1  Md.  (1851),  163:  Hax- 
ton  V.  Archer,  3  Gill  &  J.  {:\Id.)  199; 
Hurl  hurt  v.  f'merson,  16  Mass.  241; 
Albee  v.  Carpenter,  12  Cush.  (66  Mass.) 
382;  Parker  v.  Parker,  5  Met.  (^Mass.) 
l-U  139;  Ide  v.  Ide,  5  Mass.  (1809), 
500;  Hall  v.  Priest,  6  Gray,  18,  20; 
Ilawley  v.  Nortliamjiton,  8  Masa  3; 
Nightingale  v.  Burrell(1833),  15  Pick. 
104,  114;  Gilford  v.  Choate,  100  Ma.ss. 
343,  345;  Allen  v.  Trustoo.s,  102  Mas-s. 
262,  261;  Brown  v.  Hospital,  155 
Mas,s.  323,  326;  Gmxiell  v.  Hibbard. 
32  Mich.  47.  51;  Wilson  v.  Wilson.  19 
AtL  R.  132,  46  N.  J.  Eq.  321;   Chet- 


868 


LAW    OF    WILLS. 


[§  G50. 


The  same  rule  generally  is  applicable  where  the  devise  is  to 
A.  and  his  heirs,  and  then  over  on  default  of  heirs.  If  the  dev- 
isee over  is  himself  the  heir  of  the  lirst  taker,  and  Avould  take 
the  fee  from  him  by  descent  in  case  he  should  die  without  issue 
surviving  him,  then  the  limitation  over  on  "dying  Avithout 
heirs"  will  be  construed  as  equivalent  to  death  without  heirs  of 
the  botly  indelinitely,  or  without  issue,  and  the  primary  devisee 
will  take  an  estate  in  fee  tail.^  Thus,  where  the  devise  was  to- 
A.  and  B.  and  their  heirs,  and  if  either  should  die  without 
heirs,  then  to  the  other,-  or  to  A.,  and  if  she  should  die  with- 
out heirs,  then,  to  her  brother,'  an  estate  tail  was  held  to  have 
been  created  in  the  first  taker. 

Whether  a  devise  creates  an  estate  tail  w^here  it  is  expressly 
for  the  life  of  A.,  and  in  default  of  issue  over,  has  been  much 
discussed.  The  application  of  the  rule  to  such  a  case  w^as  de- 
nied in  England.  As  the  testator  very  clearly  intended  that 
A.  was  to  take  a  life  estate,  the  court  could  not  contradict  the 
intention  and  by  implication  give  hira  an  estate  in  fee  tail.  But 
in  other  cases  where  the  devise  was  to  A.  for  his  natural  life, 
remainder  to  the  heirs  of  h is  hody,  with  a  devise  over  on  his 
death  without  issue,  it  was  held  that  he  took  an  estate  in  tail, 


wood  V.  Winston,  40  N.  J.  L.  337; 
Moore  v.  Rake,  26  N.  J.  L.  574;  Fos- 
dick  V.  Cornell,  1  Johns.  (N.  Y.,  1806), 
440;  Ross  v.  Toms,  4  Dev.  (12  N.  C.) 
L.  377;  Saunders  v.  Hyatt,  1  Hawks 
(8  N.  C  1831),  247;  Pax'son  v.  Lefferts. 
3  Rawle  (Pa.),  59;  Duer  v.  Boyd,  1 
Serg.  &  R.  (Pa.,  1814).  203;  Heffner  v. 
Knapper,  6  Watts,  18;  Eichelberger 
V.  Barnitz,  9  Watts  (Pa.,  1837),  447; 
Wynn  v.  Story,  38  Pa.  St.  166:  Pien;e 
V.  Hakes,  83  Pa.  St.  231;  Russell  v. 
Hubbell,  24  Pa.  St.  244;  Moody  v. 
Snell,  81  Pa.  St.  359;  Hackney  v. 
Tracy,  137  Pa.  St.  53,  20  Atl.  R.  560; 
Ray  V.  Alexander,  23  Atl.  R  383,  29 
W.  N.  C.  241,  146  Pa.  St.  242;  In  re 
Hofif,  147  Pa.  St.  636,  23  Atl.  R.  890; 
Adams  v.  Chaplin.  1  Hill,  Eq.  (S.  C, 
1833),  265;  Thomason  v.  Anderson,  4 
Leigh  (Va.),  118;  Bells  v.  Gillespie,  5 
Rand.  (Va.)  273;  Williamson  v.  Dan- 
iel, 12  Wheat.  (U.  S.)  508;  Parkman 


V.  Bowdoin.  1  Sumn.  C.  C.  359;  Os- 
borne V.  Shrieve,  3  Mason,  C.  C.  391. 
If  the  contingency  of  death  without 
issue  or  heirs  is  coupled  with  another 
event,  as.  for  example,  death  without 
heirs  in  the  life-time  of  A.,  tlie  failure 
of  issue  is  definite,  and  the  first  dev- 
isee takes  a  conditional  fee  with  an 
executory  devise  over.  Pells  v.  Brown. 
Cro.  Jac.  590:  Denn  v.  Kemeys,  9  East, 
366;  Doe  v.  ChafTey,  16  M.  &  Welsby, 
656.    See  cases  note  supra. 

1  Chesebro  v.  Palmer,  68  Conn.  207, 
36  Atl.  R.  42;  Doe  v.  Lampleugh,  3 
Houst.  (Del.,  1867),  469;  Seybert  v. 
Hibbert,  5  Pa.  Super.  Ct.  537,  41  W. 
N.  C.  85;  Cochran  v.  Cochran,  127 
Pa.  St.  486,  17  Atl.  R  981;  Titzell  v. 
Cochrane,  10  Atl.  R.  9. 

2  Hawley  v.  Northampton,  8  Mass.  3. 

3  Lee  V.  Craigen,  8  Leigh  (Va., 
1837),  449. 


^^    050.] 


TESTAMENTARY    ESTATES    IN    FEE   TAIL. 


8C9 


under  tlie  rule  in  Shelley's  case,  provided,  of  course,  that  the 
failure  of  issue  intended  by  the  testator  was  an  indefinite  fail- 
ure of  issue.  And  even  where  the  estate  was  for  A.'s  life,  with 
a  remainder  to  another  i)erson  (B.),  and  if  A.  should  die  without 
issue,  then  over  to  C,  it  was  held  that  this  limitation  gave  him 
a  fee  tail.^  A  different  rule  has  been  laid  down  in  the  United 
States,  wherever  by  statute  the  failure  of  issue  is  presumed  to 
mean  a  failure  of  issue  living  at  the  death  of  the  testator.  If, 
therefore,  land  shall  be  devised  to  A.  for  life,  the  remainder  in 
fee  not  being  expressly  disposed  of,  but  on  A.'s  death  without 
issue,  then  to  others,  the  limitation  on  death  without  issue  will 
not  enlarffe  the  life  estate  in  A.  to  a  fee  tail.^  A  devise  to  a 
person  m  indeterminate  language^  or  to  him  and  his  heirs,  and 
in  case  he  dies  leaving  no  child  or  children,  or  if  he  dies  with- 
out children,  then  over  to  others,  gives  the  devisee  named  an 
estate  in  tail  by  implication,  and  a  remainder  in  fee  limited 
over  thereon  is  valid,  and  will  vest  if  A.  dies  without  leaving 
children  survivinir  at  his  death. ^ 


iBamfield  v.  Popham  (1702).  1  P. 
■\Vm.s.  54,  57;  Blackborn  v.  Edgeley,  1 
P.  Wms.  605;  Langley  v.  Baldwin, 
1  P.  Wins.  759;  Stanley  v.  Leonard,  1 
Eden.  87 :  Attorney-General  v.  Sutton, 
1  P.  Wnis.  754.  .3  Bro.  P.  C.  75;  Par  v. 
Swindels,  4  Russ.  2:38;  Key  v.  Key,  4 
D.,  :il.  &  G.  73;  Machell  v.  Weeding, 
«  Sim.  4. 

2Flinn  v.  Davis,  18  Ala.  (1850).  1:32, 
l:!4;  Stone  v.  Franklin.  89  Ga.  195.  15 
S.  E.  R.  47;  Thomas  v.  Miller.  IGl  111. 
m,  4:3  N.  E.  R.  848;  Wilson  v.  O'Con- 
nell,  147  Mass.  17.  10  N.  E.  R.  57H; 
Eldred  v.  Shuw  (Mich.),  70  N.  W.  R. 
545;  Curtis  v.  Longstreth,  44  Pa.  St. 
297;  Walker  v.  Miliigan,  45  Pa.  St. 
178:  Ix?e  v.  I^iw  (Va.).  19  S.  E.  R.  255. 
A  will  provided  as  follows:  "To  my 
daughter  M..  I  direct  my  e.\ecutors 
to  jKiy  her  the  interest  arising  from 
the  two-lifths  of  my  estate  during 
lier  natural  life,  and  at  her  death  the 
princi|iiil,  lj<Mng  the  tw(>-fifths  of  my 
estate,  is  to  Ix*  eipially  divideil  Im'- 
twe^'n  Iwr  chililn-ii,  slian-  and  shan* 
alike;  hut,   if  my  siiid  daiigiitf-r   .M. 


should  die  without  leaving  issue, 
then  the  said  interest  hereby  devised 
to  her  shall  revert  to  my  estate."' 
Held,  that  the  daughter  took  an  es- 
tate tail,  wliich.  under  act  April  27, 
1855,  becomes  an  estate  in  fee  simple. 
In  re  Robinsons  Estate.  140  Pa.  St. 
418  (Pa.  Sup.),  24  Atl.  R  297;  Appeal 
of  Bowie,  id. 

3  Matthews  v.  Hudson,  81  Ga.  120, 
7  S.  E.  R.  280;  Richardson  v.  Richard- 
son, 80  Me.  585,  10  Atl.  R.  250;  East  v. 
Garrett,  84  Va.  523,  9  S.  p:.  R.  1112: 
Ilolden  V.  Wells,  18  R.  I.  802,  31  Atl. 
R.  205;  Ralston  v.  Truesdell,  178  Pa. 
St.  429,  35  Atl.  R.  813;  In  re  Mot>r- 
head's  Estate,  180  Pa.  St.  119,  ;{0  Atl. 
R.  047;  Moore  v.  (iary.  149  Ind.  51. 
48  N.  E.  R.  0:30;  Raggett  v.  Beaty,  2 
M.  &  P.  512.  5  Bing.  243.  To  A.,  and 
if  he  have  a  chiUl,  then  for  such  child 
after  the  parent's  decejise,  but  if  n(» 
(rhild,  then  over,  where  A.  hud  no 
child,  either  at  the  death  of  the  te.s- 
tator  nor  date  of  will,  gave  her  an  es- 
tati"  tail.  Doe  d.  Jones  v.  Davi.s,  4  B. 
&  Aid.  v.).     To  A.  lor  ins  life,  and  t«> 


870  LAW    OF    -WILLS.  [§  651. 

The  doctrine  of  the  creation  of  an  estate  tail  by  implication, 
above  explained,  lias  no  application  whatever  where  an  estate 
is  a  fee  simple,  with  a  limitation  over  upon  failure  of  issue,  and 
it  appears  either  from  the  will  itself,  or  where  the  common-law 
rule  is  niodilied  by  statute,  that  the  failure  of  issue  referred  to 
is  the  failure  of  issue  living  at  the  death  of  the  first  taker.  If 
the  primary  devisee  has  an  estate  in  fee  which  is  defeasible 
upon  a  definite  failure,  i.  e.,  of  issue  living  at  his  death,  it  be- 
comes indefeasible  in  him  on  his  having  issue  who  sm^vive  him, 
and  he  may  provide  for  such  issue  by  devising  the  fee  to  them. 
"When  the  testator  limits  an  estate  to  some  person  upon  the 
death  of  his  heir  at  law  without  issue,  the  heir  at  law  will  take 
an  estate  by  implication,  providing  the  failure  of  issue  referred 
to  is  an  indefinite  failure,  and  there  is  a  devise  over  of  the  fee, 
either  expressly  or  by  necessary  implication.^ 

§  651.  Words  directing  equality  of  division  among  heirs  of 
the  body. —  The  presumption  that  the  words  "  heir  of  the  body  " 
or  "heirs  of  the  body  "  are  used  in  a  technical  sense,  though  it 
obtains  in  the  large  majority  of  cases,  is  not  always  conclusive. 
The  law  of  construction  that  the  intention  of  the  testator,  how- 
ever expressed,  must  prevail,  will  be  enough  to  vary  the  meaning 
of  these  words,  if  it  is  apparent  that  the  testator,  though  using 
the  technical  words,  has  used  them  in  a  non-technical  sense. 

Elsewhere  it  is  explained  that  the  rule  in  Shelley's  case  is 
never  applied  to  a  devise  to  A.  for  life,  remainder  in  fee  to  his 
children;-  and  if  the  testator,  though  using  the  words  "heir 
of  the  body  "  or  "  heirs  of  the  body  "  in  the  creation  of  a  re- 
mainder, evidently  intended  those  words  to  describe  the  chil- 
dren of  the  life  tenant,  the  rule  will  not  apply  ;^  for  it  is  imma- 
terial what  words  the  testator  uses  if  we  ascertain  whom  he 
meant. 

his  son,  if  he  have  any,  and  to  the  which  case  the  devise  was  if  R  die 

eldest  son  of  that  son,  if  he  have  one;  before  he  hatli  any  issue,  so  that  the 

but  if  no  son  of  A.,  or  no  eldest  son,  lands  descend  to  G.     And  see  Doe  d. 

then  to  B.,  gives  X.  an  estate  tail  Cape  v.  Walker,  2  M.  &  G.  113,  where 

male.     Doe  d.  GaiTod  v.  Garrod,  26  tlie  language  was,  "  if  it  shall  happen 

B.  &  A.  87;  ante,  ^  649.  my  son  B.  and  my  two  daughters  die 

1  Goodridge  v.  Goodridge,  7  Mod.  without  issue  of  tlieir  bodies,"  law- 

453,  455,  in  which  the  devise  was  to  fully  begotten,  then  my  lands  go  to 

A-  for  life,  and  if  G,  the  heir  at  law,  D.  and  his  heirs, 

shall  die  without  heirs,  then  D.  shall  2  post,  %  662. 

enjoy  the  land.     See  also  Newton  v.  3  Ante,  g  616. 
Barnardine,  Moore,  127,  Owen,  29,  in 


§  051.]  TESTAMENTARY    ESTATES    IN   FEE    TAIL.  S71 

Here  we  must  consider  the  effect  of  the  words  indicating 
equality  of  division  in  affixing  the  meaning  "  children  "  to  the 
term  "  heirs  of  the  body."  Thus,  for  example,  suppose  there 
shall  be  a  devise  to  A.  for  his  natural  life,  remainder  to  the 
heirs  of  his  body,  '■^  share  and  share  alike^''  or  "  to  take  equally,''^ 
or  ^Hn  eqrial  parts,^^  or  '^to  he  equally  divided  among  them."  or 
with  similar  words  indicating  an  intention  that  the  heirs  shall 
take  concurrently  and  equally.  Under  such  circumstances  we 
will  have  to  choose  between  two  alternatives.  For,  assuming 
that  the  words  "  heirs  of  the  body  "  are  used  in  a  technical 
sense  as  words  of  descent,  the  direction  for  an  equal  division 
is,  in  most  instances,  absolutely  repugnant  to  them.  If  the 
testator  intended  that  all  the  heirs  of  the  body  shall  take  in 
succession,  as  they  will  by  descent,  they  can  never  take  equally 
where  they  happen  to  be  related  in  unequal  degrees  to  the  an- 
cestor. The  English  cases,  arguing  that  the  general  intent 
manifest  from  the  whole  will  shall  overrule  a  particular  in- 
tent manifested  in  any  portion  of  it,  have  taken  the  words  used 
in  a  technical  sense,  and  have  rejected  as  irreconcilably  repug- 
nant to  them  the  words  indicating  a  particular  intention  that 
the  heirs  of  the  body  should  take  concurrently  and  distribu- 
tively.  Accordingly,  where  the  devise  was  to  A.  for  his  life, 
and  to  the  heirs  of  his  body  as  tenants  in  corariion^  or  to  A.  and 
the  heirs  of  his  body,  whether  sons  or  daughters^  as  tenants  in 
common,^  or  to  A.  for  life,  and  to  the  heirs  of  his  body  "  in  such 
shares,  manner  or  form  as  A.  should  by  the  will  appoint,"^  the 
rule  in  Shelley's  case  was  applied,  and  A.  took  an  estate  in  fee 
tail.  As  respects  the  influence  of  a  direction  that  heirs  shall 
take  as  tenants  in  common  on  the  rule  in  Siielley's  case,  the 
law  is  firiidy  settled  in  England.  The  words  "as  tenants  in 
common"  are  usually  rejected;  and,  though  it  has  been  said 
that  the  testator  may,  hy proper  languaye^  show  that  by  "heirs 
of  the  Ijody  "  he  means  children,  yet  ho  must  do  so  in  words 
which  are  very  clear  in  their  iiwaninfj.  Where  the  testator 
used  the  word  "child"  or  "children"  in  connection  with  a  re- 
maindcT  limited  to  heirs  of  the  body,  the  court  in  England 

>  iJfM!  d.  Chaiiiller  V.  SiiiiUi.  7  T.  li.         -  Picrson   v.  Vickfrs.  f)    R-ist.  r»l8; 
532;  Ik-nriott  v.  Earl  of  Tankerville,     liosnnll  v.  Harvey.  4  H.  <fe  Cr.  «il(). 
6  Ea«t,  54a  ^  liou  d,  Colo  v.  (Juldsinitli.  7  Taunt. 

20U. 


872  LAW    OF    WILLS.  [§  G51. 

refused  to  constmu^  the  words  "Iumts  of  the  Ixxly'''  as  meaning 
"chiUlivn,"  despite  this  clear  expression  of  intention.  Such 
was  the  ease'  where  tlie  devise  was  to  "A,  for  life,  remainder 
to  the  heirs  of  his  body  in  such  shares  as  he  should  by  will  ap- 
])oint,  and,  in  default  of  appointment,  then  to  the  heirs  of  his 
body  tiJuit'e  and  share  alike  as  tejiants  in  common;  and  if  but 
one  child,  the  whole  to  such  child.^''  It  was  argued:  Firnl^  that 
A.  took  a  life  estate  for  the  reason  that  he  could  not  a])point 
to  all  heirs  in  succession,  and  that,  hence,  the  testator  meant 
heirs  as  purchasers.  Second,  that  all  descendants  could  not  bo 
tenants  in  common,  and  that,  as  the  words  "  heirs  of  the  body  " 
in  the  two  clauses  must  mean  the  same  person,  and  as  children 
are  referred  to  in  one  clause,  "  heirs  of  the  body  "  must  mean 
children  throughout  the  will.  Although  the  will  states  that 
the  estate  is  to  be  given  to  one  child,  if  there  be  only  one,  and 
although  children  are  undoubtedly  included  among  "heirs  of 
the  bod}'',"  the  court  expressly  overruled  these  arguments,  say- 
ing that  it  does  not  by  any  means  follow  that  "  heirs  of  the 
body  "  must  mean  children  only,  if  the  general  intent  is  other- 
wise. Despite  the  cogency  of  the  reasoning,  which  would  have 
convinced  any  American  court  that  the  testator  intended,  by 
using  the  words  "  heirs  of  the  body  "  to  indicate  "  children," 
the  House  of  Lords,  with  peculiar  English  adherence  to  prece- 
dent and  technical  phraseology,  applied  the  rule  in  Shelley's 
case;  holding  that  the  words  mentioning  tenancy  in  common 
and  equality  of  division  had  no  effect  whatever  in  affixing  a 
non-technical  meaning  to  the  words  "heirs  of  the  body."^ 

In  America  a  direction  that  heirs,  or  heirs  of  the  body,  who 
take  in  remainder,  shall  share  equally,  has  great  weight  as  evi- 
dence of  an  intention  that  they  shall  not  take  by  descent. 
Where  the  devise  is  to  heirs,  or  to  heirs  of  the  body,  "  sha^e 
and  share  alike,''''  or  "  to  take  equally,''''  it  will  be  presumed  that 
the  testator  did  not  intend  heirs  by  descent  to  take  in  succes- 
sion, but  that  he  meant  by  heirs  of  the  body  either  the  chil- 

1  Jesson  V.  Wright,  2  Bligh,  1.  d.  Wooley  v.  Norwood.  7  Taunt.  362; 

2  The  earlier  cases  of  Doe  d.  Long  Gretton  v.  Ha  ward,  0  Taunt.  94,  may 
V.  Laming,  2  Burr.  1100;  Doe  d.  Hal-  be  regarded  as  expressly,  or  by  im- 
len  V.  Ironmonger,  3  East,  533:  Doe  i)ncation,  overruled  by  Jesson  v. 
d.  Strong  v.  Golf,  11  East,  668;  Crumj)  Wright,  supra. 


§  052.] 


TESTAMENTARY    ESTATES    IN    FEE    TAIL. 


dren  of  the  life  tenant,  or  such  persons,  and  no  other,  Avho  at 
his  death  were  the  heirs  of  his  body,  and  those  persons  will 
take  the  fee  as  purchasers  under  his  will.^  This  presumption 
is  ver}'  materially  strengthened  where  the  fee  is  limited  to  the 
Ji^irs  general  of  the  heirs  of  the  hodij,  or  to  their  executors  and 
assigns;-  or  by  the  circumstance  that  in  another  part  of  the 
will  the  word  "children  "  is  coupled  with  "  heirs  of  the  body," 
as  to  the  heirs  of  her  bod  y,  each  child  share  and  share  alike} 


1  Dunn  V.  Davis.  1'2  Ala.  lo5;  Shar- 
man  v.  Jackson,  30  Ga.  (1860),  224; 
Lillibridge  v.  Ross,  31  Ga.  (1861).  730; 
Zavitz  V.  Preston,  96  Iowa,  52,  54,  64 
N.  W.  R.  668;  Prescott  v.  Prescott, 
10  B.  Mon.  (49  Ky.,  1850).  56.  58;  Tan- 
ner V.  Livingston,  12  Wend.  (N.  Y., 
18M4),  83;  Ward  v.  Jones.  5  Ired.  Eq. 
(40  N.  C.  1847),  400;  Mills  v.  Tliorne, 
95  N.  C.  362;  Swain  v.  Roscoe.  2  Ired. 
L.  (24  N.  C.  1842).  200;  Bedford  v. 
Jenkins,  96  N.  C.  254,  259,  2  S.  E.  R. 
522;  Bunnell  v,  Evans,  26  Ohio  St. 
409;  Findlay  v.  Riddle,  3  Binn.  (Pa., 
1810),  139;  Steiner  v.  Kolb,  57  Pa.  St. 
123,  124;  Clemens  v.  Hecksher,  185 
Pa.  St.  478.  487,  40  Atl.  R.  80;  Dukes 
V.  Faulk.  37  S.  C.  255.  268,  16  S.  E.  R. 
122;  Williams  v.  Foster.  3  Hill,  Law 
(S.  C,  1836),  193;  Dott  v.  Cunning- 
liam.  1  Bay  (S.  C,  1795),  453.  455; 
Vailen  v.  Hance.  1  Head  (Tenn.).  300, 
304;  Self  v.  Tune,  6  Munf.  (Va.,  1820), 
470.  Contra,  Holt  v.  Pickett  (Ala., 
1896),  20  S.  R.  432;  Sims  v.  George- 
town College,  1  App.  D,  C.  72;  Ross 
V.  Jones,  4  Dev.  L.  (15  N.  C,  1.S33), 
376;  Kennedy  v.  Kennedy,  29  N.  J.  L. 
185,  188;  Quick  v.  Quick,  21  N.  J.  Eq. 
13.  19;  Watts  v.  Ciardy.  2  Fla.  (1843), 
369;  Thompson  v.  Mit<li.-ll.  4  Jones' 
(N.  C.)  Eq.  441;  ("ooimt  v.  (,'o<j|K'r,  6 
R.  I.  261;  Brant  v.  GelHton,  2  Jolins. 
CaM.(N.  Y.,  1801),  284. 

2DukeH  V.  Faulk,  37  S.  C.  25.5,  16 
H.  H  R.  122. 

»IxK;kman  v.  Hohlw,  98  N.  C.  541, 
4  8.  E.  R  627.  In  I'owell  v.  Glen.  21 
Ala.  (Ib52),  458,  on  p.  466,   IJiirgaii, 


C.  J.,  said:  "The  words  'heirs  of  the 
body '  ordinarily  are  words  of  limita- 
tion and  not  words  of  purchase,  but 
they  are  frequently  used  in  wills  to 
denote  'children,'  or  as  synonymous 
witli  'children,'  and  when  used  in 
that  sense  by  the  testator  we  must 
construe  them  as  words  of  purchase 
and  not  of  limitation.  And  when, 
from  other  expressions  in  the  will, 
we  see  that  the  estate  of  the  first 
taker  is  re.stricted  to  a  life  estate, 
and  the  property  devised  by  the 
terms  of  the  will  is  to  vest  in  the 
children  of  the  first  taker  tliat  may 
be  then  (at  the  death  of  the  first 
taker)  in  life,  we  must  then  construe 
tlie  words  '  lieirs  of  the  body '  as 
words  of  purchase  and  not  of  limita- 
tion. Any  other  rule  of  construction 
than  tliis  would  violate  tlie  intention 
of  the  testator,  or  fail  to  cany  that 
intention  out  wlien  it  would  be  law- 
ful to  do  so.  Indeed,  all  authorities 
agree  that  though  the  words  'heirs 
of  the  body,'  or  'dying  without  issue,' 
do  ordinarily  create  an  estate  tail, 
yet  they  nuiy  be  restricted  and  ex- 
plained by  other  expressions;  and  if. 
from  such  other  expressions,  we  see 
that  the  testator  intendi'il  that  the 
estate  of  the  first  taker  siiuuld  cea.se 
witii  his  life,  and  the  |)r(ip('rty  given 
siiould  tliiMi  vt'st  in  his  children,  or, 
in  default  of  children  at  the  time  of 
his  ileath,  then  «jver  to  another,  in 
hUfh  <'U.so  wo  <'annot  refuse  to  give 
elfect  to  the  remaiiuler  without  vio- 
lating the  well-settlod  rules  of  law." 


S74 


LAW    OF    WILLS. 


[§  653. 


§  r»5'2.  ^Vonls  of  linntation  and  inheritance  added  to  ''heirs 
of  the  hody."'  —  If  the  testator  by  the  use  of  proper  language 
expressly  creates  an  estate  tail,  it  is  not  material  that  lie  limits 
the  estate  to  the  heirs  general  of  the  heirs  of  the  body,  or  to 
the  heirs  and  assigns  of  the  heirs  of  the  body.  Thus,  a  devise 
to  "A.  and  the  heirs  of  his  body,  and  their  heirs  and  aftsigns 
forever,''''  creates  in  A.  and  the  heirs  of  his  body  a  fee  tail,  and 
the  inconsistent  language  will  be  rejected  or  will  be  regarded 
as  controlled  by  the  language  which  precedes  it.^  So,  also, 
where  there  is  a  limitation  to  A.  for  life,  remainder  to  the  heirs 
of  his  body,  and  "  iJteir  heirs  and  assigns  forever,''  the  latter  lim- 
itation does  not  prevent  the  application  of  the  rule  in  Shelley's 
case,-  and  A.  will  take  an  estate  in  fee  tail.^ 

§  G53.  Estates  tail  in  the  United  States. —  Estates  tail,  as 
forming  part  of  the  common  law  of  real  property,  were  intro- 
duced with  it  into  the  original  thirteen  colonies,  and  have  been 
extended  with  the  extension  of  the  common  law  into  the  other 
states,  so  far  as  they  have  not  been  expressly  abolished  by  stat- 


» Blair  v.  Van  Blarcom,  71  111.  290, 
292;  Malcolm  v.  Malcolm,  3  Cush.  (37 
Mass.,  1849).  472;  Wight  v.  Thayer,  1 
Gray  (67  Mass.,  1854),  284,  287.  289; 
Hall  V.  Thayer,  5  Gray  (71  Mass.),  523: 
Corbin  t.  Healy,  20  Pick.  (37  Mass.) 
514;  Buxton  v.  Uxbridge,  10  Met. 
(IMass.)  87,  91 ;  Den  v.  Laquear,  4  N.  J. 
Law,  301:  Barlow  v.  Barlow  (1849), 

2  N.  Y.  386,  387;  Brown  v.  Lyon,  6 
N.  Y.  (1852),  419,  421;  Pollock  v.  Spei- 
del,  27  Ohio  St  86;  Heilman  r.  Bous- 
lagh,  13  Pa.  St.  (1850),  344:  George 
V.  Martin,  16  Pa.  St.  95;  Osborn  v. 
Shrieve,  3  Mason  C.  C.  391 ;  Legate  v. 
Sewell.  1  P.  W.  87:  Minshull  v.  Min- 
shull.  1  Atk.  411;  King  v.  Burchell,  4 
T.  R.  296:  Roe  v.  Grew.  2  Wils.  322: 
Blandford  v.  Applin,  4  T.  R  82. 

2  Andrews  v.  Lothrop,  20  Atl.  R  97. 
17  R  I.  60;  Manchester  v.  Durfee,  5 
R  I.  (1858\  549;  Paxson  v.  Lefferts, 

3  Rawle  (Pa.).  59;  Morris  v.  Ward,  36 
N.  Y.  587;  Goodright  v.  Pullyn,  2  Ld. 
Raymond,  1437;  Wriglit  v.  Pearson, 
Amb.  358:  Gearing  v.  Slienton,  1 
Cowp.  410;  Measure  v.  Gee,  5  B.  &  A. 


910;  Kinch  v.  Ward.  2  Sim.  &  Stu. 
409,  3  GreenL  Cruise,  p.  346.  See 
also  cases  cited  on  this  jioint,  post, 
§660. 

3  A  devise  to  five  daughters  of  the 
testator,  '•  to  be  to  them  an  estate  for 
life,  and  to  the  heirs  of  their  bodies 
after  them,  and  to  the  heirs  and  as- 
signs of  such  heir  forever,  .  .  . 
it  being  my  will  and  intent  to  give 
an  estate  in  fee  to  sucli  of  my  daugh- 
ters as  shall  die  leaving  issue,  and 
an  estate  for  life  only  to  such  of  them 
as  shall  die  without  leaving  any  issue 
to  survive  them,"  gives  the  daughters 
estates  in  fee  tail.  Manchester  v. 
Diirfee,  SRI.  549.  So  a  life  estate 
in  A.,  and  after  his  death  to  A's  eld- 
est male  heir,  and  upon  tlie  death  of 
such  male  heir  to  his  male  heir  and 
his  heirs  forever,  creates  an  estate 
tail  male  in  A.  Malcolm  v.  Mal- 
colm, 3  Cush.  (Mass.)  472.  And  a  de- 
vise to  A.,  "  the  heirs  of  his  body  and 
their  assigns  forever,"  creates  an  es- 
tate tail  in  the  first  devisee.  Pollock 
v.  Speidel,  27  Ohio  St.  86. 


§  654.] 


TESTAMENTARY    ESTATES   IN    FEE    TAIL. 


ST5 


ute.^  In  South  Carolina  they  were  never  recognized,  and  in 
that  state  a  devise  to  A.  and  the  heirs  of  his  body  has  always 
created  a  fee  conditional  as  at  the  common  law  prior  to  the 
statute  de  donis?  In  some  of  the  states,  however,  estates  tail 
are  still  recognized  to  a  modified  extent.  This  is  the  case  in 
Pennsylvania  ^  and  Massachusetts,*  though  they  are  barred  by 
deed,  as  in  the  case  of  a  fee  simple.  Elsewhere  the  abolition 
of  these  estates  is  so  recent  that  some  consideration  of  the 
mode  in  which  estates  tail  may  be  created  by  will  is  indispen- 
sable.^ 

§  654.  Statutory  regulation  of  estates  tail  in  the  United 
States. —  In  Alabama,^  California,''  Connecticut,^  Delaware,® 
Florida,^"  Georgia,^^  Kentucky,'-  Indiana,"  Iowa,"  Maine,^'  Mich- 


1  Flinn  v.  Davis,  18  Ala,  132,  134; 
Allyn  Y.  Mather,  9  Conn.  (1832),  115; 
Wells  V.  Olcott,  Kirby  (Conn.,  178G), 
118;  Johnson  v.  Johnson,  2  Met.  (59 
Kv.,  1859),  831,  333;  Partridge  v. 
Dorsey,  3  Har.  &  J.  (Md.)  302:  Riggs 
V.  Sally,  15  Ma  (1839),  408:  Jackson 
V.  Van  Zandt,  12  Johns.  (N.  Y.)  169; 
Hawley  v.  Northampton,  8  Mass.  3; 
Dennett  v.  Dennett,  40  N.  R  498, 
.505;  Holcomb  v.  Lake,  24  N.  J.  L. 
686;  Doty  v.  Teller,  54  N.  J.  L.  163; 
Pollock  V.  Speidel,  17  Ohio  St,  439; 
Price  V.  Taylor,  28  Pa.  St.  95;  Gid- 
dings  V.  Smith,  15  Vt.  344;  Sydnor  v. 
Sydnor,  2  Munf.  (Va.,  1811),  263. 

2Du  Pont  V.  Du  Bose.  29  S.  C.  665. 

'Reinhard  v.  Luntz,  37  Pa,  St.  488; 
Potts'  Apr>eal,  30  Pa.  St.  172;  Taylor 
V.  Taylor,  63  Pa.  St,  486;  Guthrie's 
Appeal,  37  Pa.  St  9. 

<  Wight  V.  Thayer,  1  Gray  (67  Masa, 
1854),  2«4,  286;  Buxton  v.  Uxbridge, 
1  Met  (42  Mass.,  1840).  87;  Davis  v, 
IL'iyden,  9  Mass.  514;  Weld  v.  Will- 
iarn.s,  13  M(!t  (Mass.)  486;  Nightingale 
v.  Burndl,  15  Pi<;k.  104.  116. 

*In  Pennsylvania  a  d<*viw!  to  A., 
and  in  the  event  of  Ikt  "(lying  im- 
nuirried,  or,  if  married,  dying  witli- 
out  ofTspring  by  her  liusbaml,  then 
theso  lotH  aro  to  bo  Hold,  uud  tho  pro- 


ceeds to  be  equally  divided  among 
the  heirs  of  J.,"  creates  an  estate  in 
tail  in  A.  Barber  v,  Pittsburgh,  F. 
W,  &  C.  Ry.  Co.,  166  U.  S,  83,  99,  17 
S.  Ct  488, 

6R.  S.  1867,  §  1570;  R  S.  1876, 
§  2179;  Code,  §  1825;  Smith  v.  Greer, 
88  Ala.  414,  6  S.  R  911. 

7  Code,  ^,^5  763.  764 

8  Act  of  1784,  Gen,  St,  ch.  89,  8§  4, 
8;  ch,  90,  §  36;  Allen  v.  Trustees,  102 
Mass.  262,  264. 

9  Code  1872,  p.  507,  §  27. 

10  Thompson's  Dig.,  tit  2,  ch.  1,  §  4, 

11  Code  1873,  p.  391,  §  2250;  Robert 
V,  West,  15  Ga,  122,  145;  Pownel  v. 
Harris,  29  Giu  736;  Ford  v.  Cook,  73 
Ga,  215;  Craig  v,  Ambrose,  80  Ga. 
134,  4  S.  K  R.  1;  Wilkerson  v.  Clark, 
80  Ga.  367,  7  S.  K  R.  319. 

12  Gen,  St  1873.  p,  585;  Gen,  St,  ch- 
63,  art  1,  §  8;  Daniel  v,  Thompson, 
14  B,  Mon,  (Ky„  1854).  662;  Deboe  v. 
T^)\von,  8  B.  Mon.  (Ky.,  1848).  616; 
Priiilt  V,  Holland,  92  Ky,  641,  18  S. 
W.  K.  «H3:  Sanders  v.  Wa<l«^  30  S.  W. 
li.  656;  McMeekin  v.  Smith,  21  S,  W. 
\L  353. 

••'  R  S.  1876,  p.  368,  §  36. 
"Stat  1873,  i- 355. 
i''R.S.  1871,  p.  559.  §4. 


87G 


LAW    OF    WILLS. 


[§  «54. 


igan,'  Mary  land,'-  ^[innesota,'  Mississippi,*  Xew  York,'*  North 
Carolina,'  Ohio,^  Oregon,  Pennsylvania,^  Rhode  Island,^  Ten- 
nessee,'" Virginia,"  Vermont,  Washington,  AVest  Virginia,'-  Wis- 
consin,''  and  perhaps  in  other  states,  estates  tail  are  by  statute 
turned  into  lees  simple.  In  those  states,  any  devise  which  by 
its  terms  would  have  created  an  estate  tail  at  the  common  law 
will  now  be  construed  to  create  an  estate  in  fee-simple  abso- 
lute. In  Arkansas,'^  Illinois,''^  New  Jersey  "^  and  Vermont,'^  an 
interest  which  would  have  been  an  estate  tail  at  the  common 
lau'  is  now  an  estate  for  life  in  the  first  taker,  and  a  contingent 


iComp.  Laws.  1871,  ch.  CXLVII, 
§  o.  p.  1325;  Fraser  v.  Cliene.  2  Mich. 
81. 

-'Acts  Md.  1820,  ch.  191,  §  1;  Pen- 
ningtou  v.  Pennington.  70  Md.  418. 
"Where  a  will  provided  that,  on  the 
death  of  the  devisee,  the  property 
"should  descend  to  her  lawful  heirs, 
and,  should  she  die  without  legal 
issue,"  it  should  revert  to  the  estate 
of  the  testator,  the  word  "heirs" 
will  be  restricted  to  mean  "heirs 
of  the  body,"  and  the  devisee  will 
take  an  estate  tail  general,  which 
(by  act  Md.  1786,  ch.  45)  would  be 
converted  into  a  fee-simple  estate. 
Dengel  v.  Brown,  1  App.  D.  C.  423; 
Act  1786,  ch.  45;  R.  S.  1800.  p.  130, 
§  24;  Railroad  Co.  v.  Patterson,  68 
Md.  GOO,  13  AtL  R.  309:  Mason  v. 
Johnson,  47  Md.  247. 

3R  S.,  §3.  p.  613. 

•♦Laws  1857,  p.  307;  Stat.  1871, 
§  2286.  See  McKenzie  v.  Jones,  39 
Miss.  230,  231. 

5  By  statute  in  1782.  Lott  v.  Wyck- 
off,  2  N.  Y.  355;  Wendell  v.  Crandall, 

1  N.  Y.  491. 

«  Battle's  Rev.  1873.  p.  383,  §  1;  Act 
1784,  ch.  22;  Ross  v.  Toms,  4  Dev. 
(N.  C.)  L.  376;  Sanders  v.  Hyatt,  1 
Hawks  (8  N.  C,  1821),  247;  Folk  v. 
Whitley,  8  Ired.  (30  N.  C,  1848).  L. 
133;  Leathers  v.  Gray,  96  N.  C.  548, 

2  S.  K  R.  355. 

n  S.  &  Ct.  R.  S.,  §  550;  R.  S.  1869, 
■p.  550. 


8  Act  of  April  27. 1855,  §  1 ;  P.  L.  36: 
1  Purd.  Dig.,  p.  620,  pi.  8.  Estates 
tail  in  Pennsylvania  descend  as  at 
common  law.  Shalters  v.  Ladd,  141 
Pa.  St.  349.  21  Atl.  R.  596:  Duer  v. 
Boyd,  1  S.  &  R.  (Pa.)  203;  Reinhard 
v.  Lantz,  37  Pa.  St.  491;  Nicholson  v. 
Bettle,  57  Pa.  St.  384;  Linn  v.  Alex- 
ander, 59  Pa.  St.  43. 

9  Gen.  Stat.  1872.  p.  348;  ch.  171,  S  2, 
p.  313;  Andrews  v.  Lathrop,  17  R.  L 
60.  20  Atl.  R.  97.  Tlie  effect  of  this 
statute  is  to  enlarge  the  devise  en- 
tail into  a  fee  simple  in  the  children 
of  the  first  taker.  Wilcox  v.  Hey- 
wood,  12  R.  L  196;  Sutton  v.  Miles. 
10  R.  L  348.  See  also  Manchester  v. 
Durfee,  5  R.  I.  549. 

10  Code  1858,  §  2007:  Cooper  v.  Cour- 
sey.  2  Coldw.  (Tenn.)  416. 

11  Tinsley  v.  Jones,  13  Graft.  (Va.) 
289:  Nowlin  v.  Winfree,  8  Graft. 
(Va.)  346;  Ball  v.  Payne,  6  Rand. 
(Va.)  73;  Doe  v.  Craiger.  8  Leigh  (Va.), 
449;  Bramble  v.  Billups,  4  Leigh  (Va.), 
90. 

I'!  Code  1868,  §  460. 

13  R.  S.  1878,  ch.  95,8  2027. 

11 R.  S.  1874,  p.  273;  R.  S.  1888,  p.  268. 

15  Act  of  July  1,  1872;  R  S.  1880, 
pp.  266,  273. 

i«  Doty  V.  Teller.  54  N.  J.  Law,  163, 
23  Atl.  R.  944;  Act  of  June  13,  1820 
(P.  L.  178;  Rev.,  p.  299.) 

!•?  Laws  1874,  p.  446. 


65i.] 


TESTAMENTAKY    ESTATES    IN    FEE    TAIL. 


877 


remainder  in  his  heirs.  In  Vermont,  by  an  early  statute,  the 
lands  ffiven  in  fee  tail  descended  to  the  children  of  the  first 
taker  equally;^  and  in  Missouri  an  estate  tail  has  been  by  stat- 
ute converted  into  an  estate  for  life,  with  a  remainder  to  the 
children  of  the  primary  devisee,-  and,  if  none,  to  his  heirs  gen- 
eral.^ 


1  Stat.  1789,  pp.  76,  77. 

2  Stat  1866,  p.  44-3:  Brown  v.  Rodg- 
ers  (Mo.),  28  S.  W.  R.  630. 

3  Mo.  R  S.  1845,  p.  219,  g  5;  Bone  v. 
Tyrrell,  113  Mo.  175,  20  S.  W.  R  796. 
In  Vermont,  by  Vermont  Statutes, 
section  2201,  a  devise  in  fee  tail  cre- 
ates an  estate  for  the  life  of  the  first 


tenant  in  tail,  and  a  contingent  re- 
mainder in  the  person  to  whom  the 
estate  tail  would  have  passed  on  the 
death  of  the  first  taker  according 
to  the  course  of  the  common  law. 
Kelso's  Estate,  37  Atl.  R  747,  69  Vt 
272,  274. 


CHAPTER  XXXIII. 


THE  APPLICATION  OF  THE  RULE  IN  SHELLEY'S  CASE  TO  WILLS. 


§  655.  Tlie  orij!jin  and  history  of  the 
rule  in  Shelley's  case. 
G56.  The  life  estate  in  the  ancestor 
and  the  remainder  must  be 
created  by  the  same  instru- 
ment. 

657.  Exceptions  to  the  operation 

of  the  rule. 

658.  Whether  the  rule  will  yield 

to  the  intention. 

659.  English  cases  in  which  an 

explanatory    context    was 
held  to  exclude  the  rule. 

660.  TJie  meaning  which  may  at- 

tach to  '*  heirs  of  the  body  " 
from  the  context. 

661.  Terms  in  which  "  heirs  "  or 

"  heirs  of  the  body  "  may  be 
described. 


§  6G'3. 


6G3. 


004. 


665. 
666. 

667. 

668. 

608a. 


The  rule  is  not  applicable  to 
remainders  to  children. 

The  rule  in  Shelley's  case  as 
applied  in  equity. 

Trusts  exe(!utory  and  ex- 
ecuted defined  and  distin- 
guished. 

Executory  trusts  in  wills. 

The  rule  in  Shelley's  case  in 
the  United  States. 

Statutes  abolishing  the  rule 
in  the  United  States. 

The  rule  in  Shelley's  case  ap- 
plied to  personal  property. 

The  general  effect  and  the 
practical  operation  of  the 
rule  in  Shelley's  cas& 


§  655.  The  origiu  and  history  of  the  rule  in  Shelley's 
case. —  The  legal  doctrine  known  as  the  rule  in  Shelley's  case 
has  so  prominent  a  place  in  the  law  ol  devises  that  some  discus- 
sion of  its  origin  and  history  is  proper  in  this  place.  In  Shelley's 
case  ^  the  rule  is  stated  to  be,  ''  that  when  an  ancestor  by  any 
gift  or  conveyance  taketh  an  estate  of  freehold,  and  in  the  same 
gift  or  conveyance  it  is  limited,  either  mediately  or  immediately, 
to  his  heirs  in  fee  or  in  tail,  'the  heirs'  are  words  of  limitation 
of  the  estate,  and  not  words  of  purchase,"  and  the  ancestor 
takes  the  fee  simple  or  the  fee  tail,  as  the  case  may  be.^    The 


1 1  Co.  Rep.  93, 104  A. 

'-  '•  When  a  person  takes  an  estate 
of  freehold,  legally  or  equitably, 
imder  a  deed,  will  or  other  writing, 
and  in  the  same  instniment  there  is 
a  limitation  by  way  of  remainder, 
either  with  or  without  the  interposi- 
tion of  another  estate,  of  an  interest 
of  the  same  legal  or  equitable  quality 


to  his  heirs,  or  heirs  of  the  body,  as  a 
class  of  persons  to  take  in  succession, 
the  limitation  to  the  heirs  entitles 
the  ancestor  to  the  whole  estate." 
Preston  on  Estates,  vol.  1,  p.  263;  4 
Kent,  207;  approved  in  Pierson  v. 
Lane,  14  N.  W.  R  90,  60  Iowa,  60; 
Kiene  v.  Gmehle,  85  Iowa,  312,  816, 
52  N.  W.  R  232. 


§  655.]  APPLICATION    OF    RULE    IN    SHELLEy's    CASE.  S79 

rule  is  much  older  than  this  case.  Several  cases  which  may  be 
found  in  the  Year  Books  are  cited  in  Shelley's  case  as  sustain- 
ing the  rule,  and  it  is  probable  that  it  had  its  origin  in  the  courts 
of  common  law,  long  prior  to  any  case  which  has  been  reported. 
Sir  "William  Blackstone  ^  has  cited  a  case  from  18  Edward  II, 
as  establishing  the  rule.  It  doubtless  had  its  origin  in  the 
principles  of  the  feudal  system,  as  they  were  applied  to  land 
tenures  in  England,  and  which  were  reaffirmed,  if  indeed  they 
were  not  introduced,  by  the  Xormans  at  the  Conquest.- 

!N^ow,  it  should  be  remembered  that  the  kina:  or  other  feudal 
landlord  enjoyed  peculiar  privileges  as  a  landlord,  in  case  of 
the  descent  of  land  which  was  held  under  him,  which  he  did 
not  enjoy  otherwise.  The  heir  of  the  tenant  who  held  by 
knight  service,  or  other  military  tenure,  taking  by  descent,  had 
certain  obligations  to  meet  to  his  landlord,  from  which  he 
would  have  been  exempt  in  case  he  took  as  a  purchaser.  For 
example,  if  the  heir,  being  a  male  infant,  were  to  take  by  de- 
scent, the  lord  was  entitled  to  his  wardship  during  his  minor- 
ity, with  an  opportunity  of  enjoying  the  rents  and  profits  of 
the  land  during  that  period.  On  the  other  hand,  if  the  tenant 
left  one  or  more  female  heirs,  the  lord  had  the  right  of  select- 
ing husbands  for  them,  which  right,  it  may  well  be  assumed, 
was  more  frequently  exercised  for  the  pecuniary  advantage  of 
the  lord  than  for  the  benefit  of  the  female  wards.'  And  in 
either  case,  where  the  heir  was  an  adult  and  took  by  descent, 
various  sums  of  money  could  be  demanded  as  so-called  reliefs 
under  the  principles  of  the  feudal  system. 

During  the  five  centuries  that  the  legislative  and  judicial 
machinery  of  the  kingdom  were  monopolized  by  the  land-own- 
ing and  land-holding  classes,  the  rule  was  supported  and  af- 
firmed whenever  possil>le.*  The  common-law  courts,  with  their 
adherence  to  precedent  and  their  devotion  to  technicalities,  fol- 
lowed it  implicitly.  It  was  a  recognized  rule  of  the  cDinmon 
law  for  centuries,  applicable  equally  to  deeds  and  to  wills;  and 

'  In  Pfrrin  v.  Bl.ik»».  lisliod  in  En;,'I;iini,anil  that  for  many 

'It  in  futilo  to  discuss  tlio  question  r«»nt»ni<vs  almost  all  land  in  En;;Iand 

whetheror  to  what  cxtfut  tlie  ftiudal  was  held  in  such  tenure.    2  Block. 

Bystem  prevailed  in  KuKhind  prior  to  Coin.,  p.  'II. 

the  Norman  conqueHt;  it  is  Kuflleient  'VJ  lila<'k.,  p.  G9. 

to  nay  that  HJiortly  thereaft<'r,  feudal  *  Keariie,  ( '.  It.  7.1-89. 

tenurcH  of  land  wen*  firmly  eslalv 


8S0  LAW    OF   AVII.I.S.  [§  655. 

it  was  imniatorial  wlietlior,  in  the  latter  class  of  instruments, 
the  testator's  intention  would  be  nullified  l)y  it.  But  with  the 
enlarijement  of  the  scope  of  equity  jurisdiction  incident  to  the 
enforcement  of  trusts  in  real  estate,  courts  of  equity,  as  will  be 
explained  in  the  sequel,'  to  a  certain  extent  refused  to  apply  it 
to  limitations  which  Avere  not  strictly  of  a  common-law  nature. 
The  theory  that  the  rule  in  Shelley's  case  owes  its  origin  and 
establishment  wholly  to  the  principles  of  tenure  which  prevailed 
under  the  feudal  system  has  been  controverted  by  some  respect- 
able authorities.  In  a  well-known  case  '  its  origin  is  attributed 
to  the  aversion  which  existed  at  the  common  law  to  the  in- 
heritance being  in  abeyance.  For  where  an  estate  is  limited  to 
A.  for  life,  with  remainder  to  his  heirs,  the  remainder  is  con- 
tingent, for  the  reason  that  because  nemo  est  hares  viventis  it 
was  impossible  to  tell  who  were  the  heirs  of  A.  until  the  death 
of  A.,  when  they  would  ultimately  take  as  purchasers.  In  the 
meantime  they  could  not  at  common  laAV  alienate  their  inter- 
ests except  by  an  estoppel  until  the  death  of  the  ancestor,^  nor 
could  he  convey  the  fee  simple,  as  he  had  only  a  life  estate. 
If  the  fee  was  vested  in  the  ancestor,  as  it  would  be  by  the  ap- 
plication of  the  rule,  the  heirs  would  take  by  descent  from  him, 
and  as  a  result  the  fee  might  be  alienated  by  him  a  generation 
sooner.*  So,  too,  it  may  be  that  the  rule  had  its  origin  in  the 
fact  that  in  early  times  a  feoffment  or  a  grant  to  A.  and  his 
heirs  was  intended  to  be  in  fact  as  well  as  in  words  a  gift  to 
the  heirs.  A.,  though  tenant  in  fee,  could  not  sell  without  the 
lord's  consent,  nor  could  he,  until  the  statute  of  wills,  then  devise 
it;  also,  by  the  common  law,  under  a  grant  in  indeterminate 
language  the  grantee  took  only  a  life  estate  and  his  heirs  took 
nothing.  Hence  it  is  easy  to  see  how  in  early  times  a  grant 
to  K.for  life,  and  after  his  death  to  his  heirs,  was  taken  to  mean 
precisely  the  same  as  to  ^.  and  his  heirs,  and  that  the  word 
"  heirs,"  which  is  now  merely  a  technical  word  of  limitation,  was 
then  almost  if  not  quite  equivalent  to  words  of  purchase,  giving 
a  distinct  and  independent  interest  to  the  heirs,  which  it  was  the 
policy  of  the  lord  to  favor.*     The  rule  in  Shelley's  case  is  only 

1  See  post,  %  6G3  et  spq.  *  See  post  ^  6680. 

-  Perrin  v.  Blake,  4  Burr.  2579.  1  W.  ■■>  In  Perrin  v.  Blake,  supra,  the  tes- 

Bl.  672.    See  also  Hargraves,  L.  T.  489.  tator  devised  his  estate  to  liis  son  W., 

^Post,  chapter  on  Remainders.  and  the  infant  of  which  his  wife  was 


§  656.]  APPLICATION    OF    RULE    IX    SHELLEY's    CASE.  SSI 

applicable  where  the  limitation  to  the  heirs  is  by  way  of  a  con- 
tingent remainder.  An  executory  devise  to  heirs,  or  a  shifting 
or  a  springing  use  to  the  heirs  of  a  person  who  himself  takes  a 
previous  estate  of  freehold,  vests  in  the  heirs  as  purchasers  and 
not  by  descent.^ 

§  656.  The  life  estate  in  the  ancestor  and  the  remainder 
must  be  created  by  the  same  instrument. —  In  order  that  the 
rule  in  Shelley's  case  shall  be  applicable  to  a  limitation  to  one 
for  his  life,  and  remainder  to  his  heirs,  it  is  indispensable  that 
hoth  interests  shall  he  given  hy  the  same  instrument.  A  will  and 
any  paper  which  is  incorporated  with  it  by  reference  -  are  re- 
garded as  one  instrument  for  this  purpose.' 

So,  for  the  same  purpose,  a  will  and  the  various  codicils 
added  to  it  are  one  paper,  whether  attached  or  not.  But  where 
a  parent  by  a  marriage  settlement  conveys  land  to  his  child 
for  life,  and  by  his  subsequent  will  devises  a  fee  in  remainder 
in  the  same  to  the  issue  of  the  marriage,  the  issue  take  as  pur- 
chasers, and  not  by  descent,*  for  the  estates  are  not  created  by 
the  same  instrument. 

The  question  has  been  asked  whether  the  rule  in  Shelley's 
case  applies  where  a  freehold  estate  is  created  by  an  instru- 
ment which  also  confers  a  power  to  appoint  the  remainder  hy 
another  instrument,  as  a  devise  to  A.  for  life  with  a  power  of 
appointment  in  him  by  deed  or  will  among  his  heirs  or  the 
heirs  of  his  body.  Some  authorities,  relying  on  the  rule  that 
the  objects  of  the  exercise  of  the  power  take  under  the  first 

pregnant,  for  the  term  of  tlieir  nat-  he  took  an  estate  in  fee  tail.    For 

ural  lives,  with  a  remainder  to  G.  and  other  English  authorities  on  the  rule 

his  heirs  for  the  life  of  said  son  W.  in  Shelley's  case,  see  Whiting  v.  AVil- 

and  the  infant,  with  the  remainder  kins,    1    Bulstrode,    211);     Lloyd    v. 

to  the  ht.'irs  of  the  body  of  said  son  Carew,  Pre.  Ch.  72,  Show.  1:57;  Rim- 

and  said  infant;  and  various  remain-  dale  v.  Eley,  Carthew.  170;  Ihough- 

ders  over  for  life  and  in  fee.     The  ton  v.  Langley,  2  Lord  Kaymond,  .s7;{, 

widow    proved   not   to   be  enceinte.  2  Salkeld.  07S(;  Lisle  v.  ( i ray.  Sir  Th. 

The  cpiestion  was  whether  A.  took  Jones,  11-1,  2  Levin/,.  22;{,  Toilcx.  .W3. 

an  estate  for  life  with  a  remaiiuler  •  Lloyd  v.  Carew,  I're.  (Jlu  72. 

to  the  heirs  of  his  iiotly,  «»r  whether  ■'Seo  ^,^  271J-2y  1. 

lie  tofjk  a.  fe<3  tail.     On  the  lirst  trial  'Hayes  d.  Foord  v.  Foordo,  2  W. 

of  this  f-a-se  I»rd  Mansfield,  with  Ash-  W.  «i»H. 

ton  and  Willes,  licld  that  he  took  an  <.M<iore   v.    I'arker,    1    Lord    lijiy- 

e«tate  for  life;  Hul>s<!(pjeiitly  it  was  niond,  ;j7;  Skniner,  '}h\i. 
determined   in   the  exchei^uer  that 
00 


882  LAW   OF   WILLS.  [§  057. 

instrument,  maintain  that  the  rule  would  apply,  and  that  con- 
sequently the  heirs  would  take  by  descent.^ 

This  may  be  correct  where  the  power  of  appointment  is  to 
be  exercised  among  heirs,  though  even  then  a  court  of  equity 
would,  in  default  of  an  appointment,  raise  an  estate  in  the  heirs 
by  implication,  in  which  case  they  would  take  as  purchasers 
under  the  will  by  which  the  power  to  appoint  was  created,  and 
the  rule  in  Shelley's  case  would  not  apply  to  their  interests. 
However  this  may  be,  it  is  w^ell  settled  by  the  cases,  as  will  bo 
subsequently  more  fully  explained,  that  a  devise  to  A.  for  life, 
Avith  a  power  in  him  to  appoint  among  his  issue  in  such  shares 
and  proportions  as  he  may  elect,  does  not  come  under  the 
operation  of  the  rule." 

§  657.  Exceptions  to  the  operation  of  the  rnle. —  It  is  ab- 
solutely essential  to  the  application  of  the  rule  that  a  freehold 
estate  should  be  devised  to  the  ancestor.  If  he  has  only  a  chat- 
tel interest  the  rule  will  not  apply ; '  for  an}^  estate  limited  after 
a  chattel  to  his  heirs  is  not  a  common-law  remainder,  but  an. 
executory  devise.*  Such  a  limitation  over  after  a  chattel  will 
only  be  sustainable  in  equity  by  the  operation  of  the  statute  of 
wills,  and,  not  leing  a  common-law  estate^  common-law  rules,  such 
as  the  one  under  consideration,  are  not  applicable.  If,  there- 
fore, a  limitation  to  the  heirs  be  an  executory  devise,  they  al- 
"waj's  take  as  purchasers,  never  by  descent  from  their  ancestor.^ 

And  where  an  estate  is  limited  to  A.  for  life,  with  remainder 
to  his  heirs,  and  A.  dies  before  the  testator,  the  heirs  will  take  as 
purchasers  under  the  will ;  for,  as  they  can  take  nothing  by  de- 
scent, the  intention  of  the  testator  to  give  them  an  interest 
as  purchasers  under  the  will  must  be  respected.® 

1  Feame,  Cont.  Rem.,  p.  75;  Sugden  ^  The  rule  in  Shelley's  case  does  not 

on  Powers,  p.  472;  Hayes  on  Limita-  apply  to  an  executory  devise  to  take 

tions,  51.   But  Preston  on  Estates,  324,  effect  during  the  continuance  of  an 

is  contra.     It  is  surprising  that  this  estate  tail,  and  where  the  benefici- 

question  is  not  oftener  raised.     It  aries  under  the  devise  were  not  the 

seems  to  be  assumed  that  the  rule  is  heirs  of  the  body  at  large,  but  desig- 

not  applicabl&  nated  persons  of  that  class.   This  was 

-  Post,  ii  073.  so  held  in  a  very  recent  English  case 

3  Cf.  post,  §  852.  where  tlie  limitation  was  an  execu- 

*  See  post,  §  846.  tory  devise  in  trust  "  to  be  legally 

5  Lloyd  V.  Carew,  Finch,  Pre.  Ch.  conveyed    and    assured    unto    such 

72,  per  Lord  Cranworth,  in  Coape  v.  heirs  of  my  child  or  children  in  equal 

Arnold,  4  D.  M.  &  (Jr.  589;   Fearne,  shares  as  they  shall  severally  and  re- 

Ck)nt.  R.,  p.  276;  Gilbert,  Uses,  21.  spectively  attain  the  age  of  twenty- 


§  658.]  APPLICATION    OF   KULE    IX    SHELLEy's    CASE.  SS3 

§  65S.  Wli ether  the  rule  will  yield  to  the  intention. — 

The  rule  in  Shelley's  case  is  one  of  positive  law,  not  of  con- 
struction. Whether  it  shall  give  way  before  a  contrary  inten- 
tion depends  on  the  following  considerations:  The  intention 
of  the  testator  must  be  sought  after  and  followed  in  all  wills, 
irrespective  of  the  rule  in  Shelley's  case;  and  the  intention  is 
to  be  ascertained  only  by  first  ascertaining  the  sense  in  which 
the  testator  has  used  the  words  which  are  found  in  his  will. 

The^;^*'^  question,  therefore,  in  the  case  of  a  devise  to  A.  for 
life,  with  remainder  to  his  heirs  or  to  the  heirs  of  the  body,  is, 
'^WTiom  did  the  testator  intend  to  describe  hy  the  word  ^  heirs  f  " 
Until  this  is  ascertained  it  cannot  be  known  whether  the  rule 
will  apply.  This  is  to  be  ascertained  only  by  the  employment 
of  the  ordinary  rules  of  construction,  of  which  the  rule  in  Shel- 
ley's case  forms  no  part.^  The  English  authorities  raise  a 
strong  presumption  in  favor  of  the  words  "  heirs  "  or  "  heirs  of 
the  body  "  being  always  taken  in  their  technical  primary  sense; 
and  would  apply  the  rule  in  Shelley's  case  invariably  to  all 
devises  which  hj  their  lanfjuage  come  within  its  operation, 
irrespective  of  a  declared  intention  on  the  part  of  the  testator 
that  the  first  taker  is  to  have  only  a  life  estate.^  Thus,^  where 
the  testator  declared  it  to  be  '•'■his  intention  and  meaning  that 
none  of  his  children  should  taJce  an  estate  for  a  term  longer  thaih 
their  lives^''  while  the  court  of  first  instance  permitted  this  in- 
tention to  control,  the  court  of  review  reversed  this  decision. 
The  result  of  this  has  been  that  even  an  express  declaration  of 
an  intention  to  create  a  life  estate  cannot  overcome  the  rule, 
provided  it  appears  that  tiie  testator  has  employed  the  words 
"heirs"  or  "heirs  of  the  body"  in  their  technical  sense. 

There  is  always  a  very  strong  presumption  that  he  has  em- 
ployed them  in  that  sense  as  words  of  limitation,  and  not  as 
words  of  purchase.  But  the  presumption  is  not  conclusive. 
It  may  bo  shown  tiiat  they  are  used  in  another  and  secomlary 
sense.     It  is  not  only  necessary  to  seek  after  the  meaning  of 

one  years,  or  bo  inarrio<],  iind  to  their  life  estate,  and  the  heirs  a  contingent 

several  and  re.s|)ectivo  licirs  and  as-  rcniaiiider,  can  bo  phiinor  tlian  an 

hifjns  forever."   Fox  well  v.  Van  CJ  rut-  express  limitation  to  A.  for  his  nat- 

ten,  "i^  Law  Times  (N.  S.),  2:{1,  ural  life,  and  to  his  heirs  in  remain- 

'  On  this  iK^int,  see  an<c,  ^000  et  ser|.  dcr. 

'Hut   no  expresHJon  of  ititenliori  ^ i>^.rj-in  v.  Blake,  4  Burr.  2579. 
that  the  ancestor  shall  have  only  a 


SS4r  LAW    OF    WILLS.  [§   G58. 

the  words  as  to  what  perKons  are  to  tako,  l)iit  in  icJiat  cnjmcity 
they  are  to  tako.  "When  we  enih-avor  to  ascertain  whom 
the  testator  meant  by  "heirs"  or  "heirs  of  the  body,"  and 
have  ascertained  that  he  meant  those  who  would  take  hind 
by  descent  on  the  death  of  the  life  tenant,  the  question  arises, 
how  shall  they  take?  That  is  to  say,  shall  they  take  by  de- 
scent from  their  ancestor,  or  shall  they  take  as  purchasers,  as  a 
new  stock  of  inheritance  ?  If  he  used  the  words  in  their  strict 
jind  primary  sense,  the  rule  in  Shelley's  case  applies,  and  they 
will  take  by  descent. 

The  burden  of  proof  is  upon  him  who  claims  that  heirs  arc 
to  take  as  purchasers;  and  while,  if  it  appears  that  the  words 
"heirs"  or  "heirs  of  the  body"  are  used  in  their  technical  and 
legal  sense  as  -words  of  descent,  an  inconsistent  expi'cssion  of 
intention,  that  the  ancestor  shall  take  a  life  estate  Avill  not  be 
permitted  to  overcome  the  technical  meaning,'  yet  a  secondary 
meaning  may  be  attached  to  the  words.  If  it  shall  appear 
from  the  will  itself  that  the  testator  used  the  words  "heirs" 
or  "  heirs  of  the  body  "  in  the  sense  of  sons,  daughters  or  chil- 
dren, as  words  of  purchase,  the  rule  will  not  apply  ;^  for  the 
question  in  construing  wills  is  not,  "What  words  has  the  testa- 
tor used  ?  but,  What  meaning  did  he  attach  to  them  ? 

And  in  those  cases  which  permit  the  rule  to  be  overcome  by 
an  expression  of  intention,  there  is  always  something  besides 
the  mere  express  limitation  "  to  A.  and  his  heirs,"  which  gives 
a  signification  to  the  word  "  heirs  "  other  than  its  primary  and 

1  Baker  v.  Scott,  63  111.  (1871),  88;  2:\rcMahon  v.  Newcomer,  83  Ind. 

Van  Olinda  v.  Carpenter.  137  III.  43,  565, 568;  Millett  v.  Ford,  109  Ind,  159, 

19  N.  K  R  868;  Thomas  v.  Higgins,  164;    Conger  v.  Lowe,  134  Ind.  368, 

47  Md.  (1877),  439:  Warner  v.  Spiegg,  374;  Jackson  v.  Jackson,  137  Ind.  346, 

62  Md.  14;  Hileman  v.  Bouslagh,  13  349;  Earnliart  v.  Earnliart,  36  N.  R 

Pa.  St.  (1849),  344,  351;  Cockin's  Ap-  R  895,  137  Ind.  397;  McCrary  v.  Lipp, 

peal.  111  Pa.  St.  36;  List  v.  Rodney,  35  Ind.  116,  131;  Zavitz  v.  Preston,  96 

83  Pa.  St.  (1877),  483.  491;  Kleppner  Iowa,  53,  53;  Slemmer  v.  Crampton, 

V.  Laverty,  70  Pa,  St.  70,  73;  Crockett  50  Iowa,  303,  304;  Pierson  v.  Lane,  60 

V.  Roljdnson,  46  N.  H.  461  (1866);  Polk  Iowa,  60,  14  N.  W.  R.  90;  Kiene  v. 

V.  Paris,  9  Yerg.  (Tenn.)  309,  336.    The  Gniehle,  85  Iowa,  87,  89;  De  Vaughn 

rule  in  Shelley's  case  is  applicable,  v.  Hutchinson,  17  S.  Ct.  401,  166  U.  S. 

-without  regard  to  the  intention  of  566,570;  Crawford  v.  Wearn,  30  S.  E. 

"the  testator,  whenever  the  situation  R.  734,  115  N.  C.  540;  Gerbardt's  Es- 

is  created  that  is  pertinent  to   it.  tate,  160  Pa.  St.  353,  38  Atl.  R.  684; 

Xippincott  V.  Davis  (N,  J.),  38  Atl,  R,  Little's  Appeal,  117  Pa.  St.  14,  11  Atl. 

$87.  R.  530;  Smith  v.  Hastings,  37  Vt.  475. 


§  G5S.] 


APrLICATIOX    OF    ELLE    IX    SHELLEY  S    CASE. 


8S5 


technical  one;  but  the  intention  to  use  the  words  "heirs"  or- 
"  heirs  of  the  body  "  in  any  other  than  in  a  strict  and  legal 
sense  must  be  unequivocally  sho^Yn,  This  intention  must  ap- 
l^ear  so  plainly  that  no  one  can  misunderstand  it.^  It  has  been 
so  laid  down  where  the  testator  said  he  intended  his  son  to 
have  a  life  estate  and  nothing  more{  or  where  he  gave  him  the 
income  for  life,  but  that  he  should  have  no  jpower  to  disjpose  of 
the  same  for  a  term  longer  than  his  I'fe? 

If  it  appear  that  the  word  "  heirs  "  is  used  in  its  legal  sense, 
the  expressed  intention  that  the  ancestor  shall  have  a  life  es- 
tate alone  will  be  disreo-arded.* 


1  Guthrie's  Appeal,  37  Pa.  St.  (1860), 
9,13. 

2  Robinson  v.  Robinson,  1  Burr.  38, 
2  Ves.  225:  Perrin  v.  Blake,  4  Burr. 
2r)79;  Thong  v.  Bedford,  1  Bro.  C.  C. 
313. 

3Wescott  V.  Binford  (Iowa,  1898), 
74  N.  W.  R.  18;  Bedford  v.  Jenkins, 
96  N.  C.  2.54,  2  S.  E.  R.  522. 

*  Van  Olinda  v.  Carpenter,  127  111. 
42,  19  N.  E.  R,  868;  Lippincott  v. 
Davis  (N.  J.,  1897),  28  Atl.  R  587; 
Ewing  V.  Barnes,  156  111.  61,  40  N. 
R  R  61.  Parol  evidence  of  state- 
ments that  the  testator  meant  to 
give  a  life  estate  is,  of  course,  in- 
admissible. Brown  v.  Bryant  (Tex., 
1898).  44  S.  W.  R.  399:  McCrary  v. 
Lipp,  35  InfL  116,  121.  In  a  recent 
Iowa  decision  upon  a  devise  of  land 
to  one,  "to  hold  the  same  during  the 
term  of  his  natiu-al  life,"  and  giving 
him  the  use,  rents  and  profits  of  it 
during  such  time,  but  providing  tiiat 
he  should  "have  no  power  to  convey 
or  dispose  of  the  sjimo  "  for  a  jteriod 
longer  than  his  life,  an<l  that  at  liis 
death  it  Khf)uld  descend  to  his  lieirs, 
it  was  held  that  the  word  "heirs" 
will  not  b<'  given  its  teclinical  efrect, 
and  the  rule  in  Sludley's  case  will 
not  ajiply,  a.s  it  was  ti-stator's  clear 
intention  to  create  a  life  estate  only. 
Wes<<.tt  V.  BinfonI,  74  N.  W.  14.  IH. 
"Tile  rule  does  not  UHHinnf  to  (Ix  or 
dhuckle   the  meaning  of  w(;rds.     It 


strikes  at  the  intention,  when  dis- 
covered, but  it  furnishes  no  touch- 
stone for  directing  the  import  of  the 
limitations;  that  is  entirely  without 
the  province  of  the  rule,  and  is  left 
to  the  uncontrolled  operation  of  gen- 
eral principles.  On  the  one  hand, 
the  word  '  lieirs,'  though  properly  a 
word  of  limitation,  will  not  by  its 
magic  atti'act  the  rule,  if  it  be  clearly 
used  as  a  substituted  term  for  '  sons ' 
and  'children,'  etc.;  on  the  other 
hand,  the  words  'sons,'  'children,' 
etc.,  though  propei'ly  words  of  pur- 
chase, will  not  repel  the  rule,  if  they 
be  clearly  used  as  substituted  terms 
for  'heirs.'  The  rule  wars  not  witU 
words;  it  leaves  to  the  common  rules 
of  exposition  the  task  of  working  out 
the  meaning,  and  stands  aloof  until 
they  have  performed  it."  Hayes,  R. 
Estate,  95.  "The  rule  .  .  .  is  a 
rule  of  property  and  of  public  policy, 
not  of  intention  merely  or  construc- 
tion. By  this  it  is  not  meant  to  as- 
sert that  the  intention  of  the  grantor 
is  to  be  altogether  I'xciuded,  as  to 
the  entire  instrument,  in  fixing  upon 
it  a  construction  or  intcrpn-lation. 
But  it  matters 'not  how  distinctly  iii 
|M>int  of  intention  it  mayap|H>jir  tiiut 
the  grantor  meant  that  tlu>  lirst 
taker  Hliould  have  a  life  estat«*  only, 
if  it  further  appearc(l  that  l»y  tho 
use  of  the  terms  "  heirs  of  the  lM)dy.' 
'  issue," 'bons,'  'cliildren.'i-tc.,  In*  meant 


8SG  LAW    OF    AVILLS.  [§  GoO. 

§  050.  Eiiirlisli  cases  in  wliicli  an  explanatory  context  ex- 
fhulestlie  operation  ol'tlie  rule. —  Tliou<^li  ;i  strong  presump- 
tion exists  that  "  heirs  of  the  body  "  are  to  be  taken,  as  words 
of  limitation,  it  is  not  alwaj's  conclusive.  If  the  testator  shows 
by  the  context  that  by  "  heirs  of  the  body  "  he  clearly  means 
"  children  "  or  some  other  class  who  are  to  take  as  purchasers, 
the  rule  will  not  apply.^  Thus,  for  example,  wiiere,  after  a  re- 
mainder '■'■to  the  heirs  male  of  the  hochj  of  A.,''''  the  testator  pro- 
vides that  "  such  sons  shall  take  in  order  of  seniority  of  age  and 
priority  of  birth,"  ^  the  elder  of  such  sons  to  be  preferred,  or 
•where  the  remainder  is  given  to  "  male  heirs  "  in  succession,  and, 
in  default  of  such  male  cJi'ddren,  to  the  female  children^  or  to 
the  heirs  of  the  body  of  husband  and  wife,  and,  if  more  children 
than  one,  tiien  to  all,"*  or  to  the  heirs  of  the  body,  and,  on  the 
death  of  the  parent,  "  to  divide  equallij  among  the  children;  "  and 
if  but  one  child,  then  to  such  only  child,^  or  to  the  male  heirs 
in  such  proportion  as  their  father  5A«7^  appoint,"  it  will  be  pre- 
sumed that  the  testator  meant  children  or  sons  only,  by  the 
words  "heirs  of  the  body,"'^  and  they  will  take  by  purchase. 

But  the  intention  to  use  the  word  "  heirs,"  or  "  heirs  of  the 
bod}^,"  in  the  sense  of  words  of  purchase  must  be  clearly  ap- 
parent, for  the  presumption  is  in  favor  of  their  being  words  of 
limitation,  and  this  presumption  will  be  recognized  "except 
•where  the  intention  of  the  testator  to  the  contrary  is  so  plain 
that  no  one  can  misunderstand  it."^    A  direction  that  an  es- 

the  descendants  of  the  first  taker  ^Goodtitle  d.  Sweet  v.  Herring,  1 

should  take  in  their  character    of  East,  264,  273. 

heirs  a  descendible  estate  of  inherit-  ^  Ginger  v.  Wiiite,  Willes,  348,  359. 

ance,  exhausting  the  lineal  stock  of  *  North  v.  Martin,  G  Sim.  2G6.     The 

the  first  taker.     ...     It  matters  words  if  "more  children  "  interpret 

not  liow  strongly  or  how  clearly  the  the  words  "  heirs  of  the  body." 

grantor  may  intend  that  the  instru-  ^  Gummoe  v.  Howes  (185G),  23  Beav. 

nient  shall  not  be  controlled  by  the  184,  186,  190. 

rule  of  law,  yet  if  the  proper  con-  <>  Jordan  v.  Adams,  6  Com.  Bench, 

struction  of  the  terms  which  he  has  748,  9  id.  483. 

used  in  the  entire  instrument  bring  ^  Qf^  ante,  §§  651,  652. 

it  within  the  operation  of  the  rule  of  8  By  Lord  Alvanley,  in  Poole  t. 

law,  the  rule  of  law  and  not  his  in-  Poole  (1804),  3  Bos.  &  PuUen,  G2(J. 

tention  mast  have  effect."    Reese,  J.,  p.  627.     For  cases  in  which  "issue" 

in  Polk  V.  Paris  (1836), 9  Yerg.  (Ten n.)  has  been  construed  "children,"  see 

209.  on  p.  236.  post,  §  675. 

1  For  cases  in  which  "  heirs  "  means 
"children,"  see  §  616. 


§   OGO.]  AFPLICATION    OF    RULE    IX    SHELLEy's    CASE.  887 

tate  shall  not  be  sold  by  the  life  tenant,  but  that  she  shall  have 
only  the  use  of  it^  and  on  her  death  to  go  to  her  heirs,  does  not 
exclude  the  rule.^  Xor  will  a  direction  that  the  life  estate  shall 
be  without  impeachment  of  waste  prevent  the  rule  from  oper- 
ating.- 

§  660.  The  meaning  which  may  attach  to  "heirs  of  the 
body  "  from  the  context. —  The  rule  in  Shelley's  case  is  always 
applied  where  the  testator  has  used  the  words  "heirs  of  the 
body "  in  a  technical  sense  to  indicate  persons  who  take  by 
descent,  and  the  prima  facie  presumption  alwa^'S  is  that  he 
has  used  these  words  in  that  sense.  But  this  presumption  is 
not  conclusive,  and  if  it  shall  appear  from  the  will  that  he  has 
used  these  words  in  a  different  sense,  they  will  not  be  taken  as 
words  of  limitation,  but  as  words  of  purchase,  and  the  rule  in 
Shelley's  case  will  not  be  applied. 

To  what  extent  a  limitation  to  the  general  heirs,  coming 
after  a  devise  of  a  remainder  in  fee  to  the  heirs  of  the  body  of 
the  life  tenant,  shall  be  permitted  to  modify  the  latter  words, 
is  a  question  upon  which  the  cases  are  not  harmonious.^  The 
English  cases  have  decided  that  the  circumstances  tliat  the  fee 
was  limited  to  the  heirs  general  of  the  heirs  of  the  hotly  does 
not  make  the  words  ^^  heirs  of  the  hody"  words  of  purchase^  but 
that  the  rule  in  Shelley's  case  still  applied,  and  the  life  tenant 
took  an  estate  in  fee  tail.*     The  American  cases  in  which  this 

1  Bishop  V.  Selleck,  1  Day  (Conn.,  issue  of  tlie  life  tenant,  whether  a 

1804),  299;  Carradine  v.  Carradine,  33  definite  or  an   indefinite  faihire  of 

Miss.  698,  727;   1  Preston,   36.3,  306;  issue  is  intended,  does  not  alone  pre- 

Hayes  V.  Foorde,  2  W.  BL  698;  Fearne,  vent  the  application  of  the  rule  in 

Cont.  R.  17-1.  Shelley's  case.    Kinch  v.  Ward  (182r)), 

"-!  Aurnan  v.  Auman,  21  Pa.  St.  34.3,  2  S.  &  St.  411,  417;  ]Measure  v.  (See 

847;  6  Cruise,  353;  Roberts  on  Gavel-  (1822),  r,  Barn.  &  Alderson,  910;  King 

kind,  96.  v.  King,  12  Ohio,  390,  472;  Conzjilos 

'Cy.  ante,  §  C."i2.  v.  Barton,  45  Ind.  29.5,  296.     Where 

*Goodright  d.  Lisle  v.  Pullin,  2  Ld.  laiwl  was  devi.sed  to  A.,  and  afti;r  Ids 

Raym.    1437,    Stnu   729;    Wright   v.  dr-jith  to  liis  lieirs,  and  on  his  death 

Pwirson  (1758),  1  Eden,  119,  12.5,  Amb.  without  heirs  of  the  Itody  then  over, 

8.58,  363  (heirs  rnalej.    See  also  Fearno  th«   devisi;   over   was   rejcclt'd,  ami 

on  C<nit.  ItL-inaindcrs,  J).  126;  D<;n  d.  under    the    rule    in    Shflley's    caso 

(i»*«'ring  V.  Shenton,  Cow|M'r,  410.    In  A.   took  the   fee  Kiiiipl(<  absolutely, 

twoof  theH<iCjLses  then^  was  a  liniita-  Kwiiig  v.  Banics,  156  III.  61,  40  N.  K 

tion  over  U[Km  an  inrlcfinito  failure  K.  325.     A  di'\  is««  lo  a  daughter  of 

of  iHNue.     It  m  a  general  rulir  that  a  the  testator  "  free  from  tlut  control 

duvitte  over  after  u   failure  of  the  and  debts  of  Imt  IiusI.mihI,"  Imf,  if 


8SS 


LAW    OF    WILLS. 


[§  G60. 


question  of  the  effect  of  added  words  limiting  the  fee,  after  a 
gift  to  the  heirs  of  the  body,  has  arisen,  are  not  harmonious. 
At  first  ghince  the  impression  produced  upon  the  mind  is  that 
the  testator  means  by  "  heirs  of  the  body,"  witli  a  limitation 
over  to  their  heirs  general,  to  create  a  new  stock  of  inheritance. 
The  apparent  eflfect  of  the  words  is  to  show  that  he  meant  the 
children  of  the  first  taker,  and  that  he  meant  tJie^n  to  take  the 
fee  as  purchasers,  and  when  they  did  die  it  is  to  descend  to 
their  heirs  general.  It  has  been  so  held  in  many  cases,  and 
the  rule  in  Shelley's  case  has  been  repelled  w^here  the  limita- 
tion is  to  heirs  of  the  body,  their  heirs  and  assigns  forever} 

The  contrary  view  is  well  supported ;  for  where  property  was 
limited  to  heirs  general  of  the  heirs  of  the  body  after  a  life  es- 
tate in  the  ancestor,  the  rule  in  Shelley's  case  has  often  been 
applied.-  But  -where,  by  the  express  terms  of  the  will,  an  es- 
tate was  to  go  "  to  A.  for  life,"  and  then  to  descend  to  the  heirs 
of  her  body  and  their  heirs  and  assigns  forever^'  ^  or  where  the 
property  was  devised  to  A.  and  his  wife  for  their  joint  lives, 
"and  then  to  descend  to  their  heirs  jointly  and  their  heirs  and 
assigns,  or  to  such  as  may  the7i  le  living,''^  ^  or  where  the  re- 


she  should  die  without  issue  or  issue 
of  her  children,  then  to  the  heir  of 
the  testator,  does  not  come  under 
the  rule  in  Shelley's  case,  and  the 
daughter  takes  a  life  estate,  re- 
mainder in  her  children,  who  are 
meant  by  issue.  Peirce  v.  Hubbard, 
31  W.  N.C.  185,  153  Pa.  St.  18,  25  Atl. 
R  231.  A  devise  of  leasehold  proi> 
erty  to  J.  for  life,  "  with  remainder 
over  to  the  heirs  of  her  body,  if  she 
should  have  any,  but,  in  case  she 
should  die  without  such  heirs,  then 
the  said  remainder  to  C,"  vests  the 
property  absolutely  in  J.,  though 
from  the  clause  quoted  and  another 
provision  the  testator's  intention  to 
give  J.  only  a  life  estate  is  manifest; 
as  tlie  rule  in  Shelley's  case  applies 
as  well  to  leasehold  as  to  freehold 
property.  Hughes  v.  Nicklas  (Md.), 
17  Atl.  R.  398,  70  Md.  484. 

iLillibridge  v.   Ross,   81   Ga.  730, 
where  the  language  of  the  will  was, 


"to  descend  to  the  heirs  of  lier  l)oih% 
share  and  share  alike,  and  to  their 
heirs  and  assigns  forever."  Canedy 
V.  Haskins,  13  Met.  (Mass.)  389.  402, 
403,  where  the  limitation  was  to  A. 
for  life  "and  to  his  eldest  male  heir,, 
and  after  his  death  to  said  male  heirs 
and  assigns  forever."  And  also  Le- 
macks  v.  Glover,  1  Rich.  Eq.  (S.  C.) 
141;  Wilson  v.  Wilcox,  7  R.  I.  515, 
517;  Tanner  v.  Livingston,  12  Wend. 
(N.  Y.)  83. 

2  Brown  v.  Lyon,  6  X.  Y.  (1852),  419, 
431 ;  Brant  v.  Gelston,  2  Johns.  Cas. 
(N.  Y.)  384;  Schoonmaker  v.  Sheely, 
3  Denio  (N.  Y.,  1846),  485;  Carter  v. 
Mc:Michael,  10  Serg.  &  R.  (Pa.)  429; 
Paxson  V.  Lefferts,  3  Rawle  (Pa.),  59; 
75  (issue);  George  v.  ^Morgan,  IG  Pa. 
St.  95,  105;  Powell  v.  Board,  49  Pa. 
St.  46,  55. 

3  Brown  v.  Lyon,  6  N.  Y.  (1852),  419, 
421. 

*  Criswell's  Appeal,  41  Pa.  St.  288. 


661.] 


ArrLICATION    OF   KULE    IX   SEELLEY  S    CASE. 


8S!> 


raainder  is  to  the  heirs  with  simihu"  added  words,  the  courts 
have  refused  to  apply  the  rule.^  If  the  added  words  are  merely 
a  repetition  of  the  previous  words  of  limitation  to  the  heirs, 
they  will  be  rejected  as  surplusage;-  as,  for  example,  where 
the  language  of  the  testator  was  to  the  heirs  male  of  the  bod}^, 
and  the  heirs  male  of  such  issue  male.  If,  however,  the  added 
words  create  a  new  course  of  descent,  as,  for  example,  in  the 
case  of  a  devise  to  A.  for  life,  remainder  to  his  heirs,  and  to  the 
heirs  female  of  their  hodies,  the  word  "  heirs  "  becomes  a  word 
of  purchase.^ 

§  661.  Terms  in  which  "heirs"  or  "heirs  of  the  hody  " 
may  be  described. —  The  simplest  and  most  common  form  of 
a  devise  which  is  within  the  rule  in  Shelley's  case  is  that  where 
land  is  given  "to  A.  for  life,  remainder  to  his  heirs,"  or  "re- 
mainder to  the  heirs  of  his  body."  In  the  former  case  the 
primary  taker  takes  an  estate  in  fee  simple  by  the  operation 
of  the  rule;  in  the  latter  he  takes  an  estate  in  fee  tail,  if  real 
}iroperty  is  given ;  and  in  either  case  he  takes  an  absolute  in- 
terest in  personalty.  But  it  is  not  necessar}",  in  order  that  the 
rule  shall  apph^,  that  the  testator  shall  have  designated  the 
heirs  by  technical  Avords;  for  if  the  testator  in  fact  means  ta 
give  a  remainder  to  "  heirs,"  or  "  heirs  of  the  body,"  as  such, 
the  language  he  employs  is  not  material.  Thus,  in  the  case  of 
a  devise  to  A.  for.  life,  and  after  his  death  remainder  to  his 


'A  remainfler  to  "heirs  bef^otten 
of  their  bodies,  and  to  tlieir  lieirs  and 
assif^ns  forever,"  or  a  remainder  to 
"}ieir.s  of  tlie  bodj',  share  and  share 
alike,  eiiually  to  be  divided,  and  to 
tlieir  heirs  and  tvssif^s  forever,"  does 
not  fall  under  the  rule  in  Slielly's 
riise,  De  Vaughn  v.  De  Vaughn,  IGO 
L'.  S.  560,  570. 

2 George  v,  ^forgan,  10  Pa.  St.  ft",; 
(',i\mm  V.  McNeely,  11  Ohio  St.  131; 
Hurnet  v,  Coby,  1  13arn.  R  K.  :5G7. 

'And  sec  also  rases  rited  under 
Ji  O.VJ,  njitr.  Thesupn'Mic  foiirt  of  the 
United  States  lias  n-cf-ntly  held  that 
under  the  law  of  r<'al  jtroixTty  pre- 
vailing in  th<;  District  of  ( 'oluiiibiit, 
U8  declared  by  the  courts  of  .Maryland 


and  of  the  District,  though  the  rule 
in  Shelley's  case  is  recognized  as  one 
of  property,  yet,  if  there  are  explana- 
tory and  (lualifying  e.\])ressions  from 
which  it  appears  that  the  import  of 
the  technical  language  is  contrary  to 
the  clear  and  plain  intent  of  the  tes- 
tator, the  former  must  yield,  and  the 
latter  will  prevail;  and  where  there 
is  u  devise  to  a  person  for  life,  with 
remainder  to  the  heirs  begotten  of 
his  body,  and  tlieir  licirs  ititil  (issiiins 
fiinvcr,  the  first  taker  has  an  estate 
for  life,  and  his  children  take  jin  es- 
tate in  fee  by  purchase,  1  )e  Vaughn 
v.  Hutchinson,  17  S.  Ct.  401,  100  U.  S. 
500,  57  U. 


800 


LAW    OF    WILLS. 


[§  OGl. 


ISSiU 


'/  '  or  to  A.  for  life  and  to  descend  to  his  son  or  eldest  son;  ^ 


or  to  liis  eldest  male  heir,^  the  rule  applies,  for  these  words  are 
read  as  equivalent  to,  and  synonymous  with,  "heirs  of  the 
body."  A  devise  to  A.,  and  to  descend  to  A.'s  youngest  son, 
and  to  the  eldest  male  heir  of  said  youngest  son;  *  a  devise  to 
A.  and  her  descendants;^  and  to  A.  and  her  offspring;^  to  A. 
and  such  persons  as  would  be  entitled  'if  he  died  intestate;''  to 
A.  and  his  legal  heirs,  or  heirs  horn  in  wedlock;  ^  to  A.  and  his 
lauful  heirs;  ^  or  to  x\.  for  life,  and  after  his  death  to  be  divided 
itmong  his  heirs  as  the  law  may  direct,'"  are  within  the  rule. 
Though  the  rule  does  not  apply  to  a  remainder  to  children,'^ 
%vith  a  life  estate  in  the  parent,  yet  if  it  appears  that  the  tes- 
tator has  used  the  word  '■'■  children''''  as  equivalent  to  '-'•  heirs  of 
the  hodij,''^  and  as  a  word  of  limitation  to  take  in  the  whole  line 
of  descendants,  the  rule  will  be  applied,  and  the  parent  will 
take  an  estate  in  tail.'^ 


1  Jones  V.  Jones,  3  N.  J.  Eq.  236, 239; 
Gibson  v.  McNeely,  11  Ohio  St.  131, 
139;  Paxson  v.  Leflferts,  3  Rawle  (Pa.), 
59,  75;  James'  Claim,  1  Dall.  47;  Kay 
V.  Scates,  37  Pa.  St.  31,  39;  Angle  v. 
Brosius,  43  Pa.  St.  187,  189  ("legal 
issue  or  heirs  at  his  death"):  Powell 
V.  Board  of  Dom.  Miss.,  49  Pa.  St.  46, 
55;  Kleppner  v.  Laverty,  70  Pa.  St. 
70,  72.  Tlie  American  cases  in  which 
it  has  been  held  that  a  remainder  to 
issue  after  a  life  estate  in  the  ances- 
tor does  not  create  a  fee  tail  in  the 
parent  were  mostly  decided  after  the 
rule  in  Shelley's  case  had  been  abol- 
ished. Daniel  v.  Wliartenby,  17  Wall. 
(84  U.  S..  1873),  639,  645;  Lyles  v. 
Digges,  6  Harr.  &  J.  (Md.,  1825),  364; 
Goldsborough  v.  Martin,  41  Md.  488 
(1874);  Chelton  v.  Henderson,  9  Gill 
(Md.),  432(1850);  Myers  v.  Anderson, 
1  Strobh.  (S.  C.)  Eq.  346;  Hancock  v. 
Butler,  21  Tex.  (1858),  804  For  other 
cases  upon  the  applicability  of  the 
rule  in  Shelley's  case  to  remainders 
to  issue,  see  notes  under  §§  670,  673. 

2 Simpers  v.  Simpers,  15  Md.  100; 
Mellish  V.  ^Mellish,  3  Earn.  &  Cress. 
520,  523,  533,  3  Dow.  &  Ry.  804:  Rob- 
inson V.  Robinson,  1  Burr.  38 ;  Harvey 


V.  Towell,  7  Hare,  231,  12  Jur.  242; 
Tate  V.  Clark,  1  Beav.  100;  Lewis  v. 
Puxley,  16  IMees.  &  Welsby,  733,  740; 
Forsbrook  v.  Forsbrook,  L.  R  3  Ch. 
App.  93,  98.     Cf.  ante,  §  049. 

3  Goodrich  v.  Lambert,  10  Conn. 
(1834),  449;  Eraser  v.  Chene,  2  Mich. 
(1851),  91;  Brownell  v.  Brownell,  10 
R.  I.  509. 

4  Dennett  v.  Dennett,  43  N.  H.  (1861), 
499. 

5  Powell  V.  Brandon,  24  Miss.  (1852), 
343. 

6  Allen  V.  Markle,  36  Pa.  St.  (1859), 
117;  Bramble  v.  Billups,  4  Leigh  (Va.), 
90. 

'Yarnall's  Appeal,  70  Pa.  St.  335, 
342. 

»King  V.  Rock,  12  Ohio,  390. 

9  Crockett  v.  Robinson,  46  N.  H. 
454. 

10  Kennedy  v.  Kennedy,  29  N.  J.  L. 
(1860),  185. 

11  §  662. 

i2Stires  v.  Van  Rensselaer,  2  Bradf. 
(N.  Y.)  172;  Haldeman  v.  Haldeman, 
40  Pa.  St.  (1861),  29,  35:  Sheeley  v. 
Neidhammer,  182  Pa.  St.  163,  167,  37 
Atl.  R.  939;  McLure  v.  Young,  3  RicK 
(S.  C.)  Eq.  559;  Merryman  v.  Merry- 


§  002.]  APPLICATION    OF    KULE    IN    SHELLEy's    CASE.  891 

On  the  other  band,  if  the  testator  has  used  the  words  "  heirs  " 
or  "heirs  of  the  body  "  as  "words  of  purchase,^  and  as  synony- 
mous -with  "  children,"  the  rule  will  not  apply."-'  Such  would 
also  be  the  case  where  the  remainder  is  limited  to  the  heirs  of 
the  life  tenant  or  to  the  heirs  of  his  body  living  at  his  death} 
So.  too,  a  remainder  to  the  heirs  and  assigns  of  the  life  tenant 
as  thouffh  she  had  not  been  married  was  held  sufiicient  to  take 
a  case  out  of  the  rule.  The  exception  which  excluded  lineal 
descendants  from  taking  as  heirs  was  certainl}^  sufficient  to 
show  that  the  testator  meant  the  other  heirs  to  take  as  pur- 
chasers.* 

§  66'2.  The  rnle  is  not  applicable  to  remainders  to  chil- 
dren.—  The  word  "children"  is  presumptively  a  word  of  ])ur- 
chase,  not  a  word  of  limitation.^  In  the  case  of  a  devise  to  A. 
for  life,  with  a  devise  of  a  remainder  in  fee  to  his  children,  the 
word  "  children,"  if  employed  in  its  ordinary  sense,  will  be  a 
word  of  purchase,  and  the  rule  in  Shelley's  case  Avill  be  ex- 
cluded.^ The  parent  will  take  a  life  estate,  and  the  children 
will  take  a  vested  remainder  in  fee  as  a  class  as  purchasers. 
Tills  rule  of  law  and  construction  is  so  clear  that  in  most  cases 
its  existence  is  assumed ;  and  though  instances  of  such  devises 
are  very  numerous,  the  question  whether  the  rule  is  applicable 
to  them  has  seldom  arisen.^    So  also,  though  the  testator  has 

man,  5  Munf.  (Va.)  440;  Parkman  v.  ^  Ante,  §  546. 

Ik)wdoin,  1  Suran.  C.  C.  (1833),  359.  «  Ante,  %%  579,  584. 

1  See  cases  cited  under  g  659.  "McCroan   v    Pope,   17    Ala.   612; 

■^  King  V.  Beck,  15  Ohio  (1846),  559,  Van  Zant  v.  Morris,  25  Ala.  285;  Diid- 

562;   Bunnell  v.  Evans.  20  Oliio  St.  ley  v.  Mallery,  4  Ga.  52;  Goss  v.  Eber- 

(1^'75),  409,  410.  liart,  29  Ga,  (1859),  545;  Beacroft  v. 

3Dott  V.  Cunnin-ton,  1  Bay  (S.  C,  Strawn.  67   111.  (1873),  28;   Baker  v. 

1795),  453,  455:  Warners  v.  Mason,  5  Scott,   62   111.   86;    Doe   v.   Jacknian 

Munf.  (Va.)  242.    See  also  ante,  g  616.  (1854),  5  Ind.  283,  284;  Rid^eway  v. 

A  devLse  to  A.  "for  life,  and  on  his  Lanphear,   99  Ind.   (1884),   251,  257; 

death,  if  lie  shall  die  leaving  lawful  Helm  v.  Frisbie,   59  Ind.   526;   An- 

Jssue,"tothesaid  lawful  issue;  if  one,  drews  v.  Spurlin,  35   Ind.  262,  267; 

to  liim  or  to  her,  his  or  her  heirs  and  M'Nair  v.   Hawkins,    4    Biljb    (Ky., 

assigns  forever;    but  if  more  than  1816),   390;   In  re  Sanders.  4  Paigo 

one,  to   be   ecjually   divided   among  (N.  Y.),  293.  297;  Turner  v.  Patterson, 

them,  their  heirs  and  assigns  forever,  5  Dana,  292;  Wiglit  v.  Baury,  7  C'usii. 

pives  A.  an  estatf;  tail  un<icr  the  rule.  109;  GuUiric's  Appeal,  37  Pu.  St.  9; 

Powell  v.  Board  of  Domestic. Missions,  McKee   v.   McKiidi-y,  33   Piu  St.  92; 

•lit  Pa.  St.  46,  55.  (icrnt-t  v.  i-ynn,  31    Piu  St.  91;  Jone.s 

<  Bnjokinan  v.  Smith,  L.  li,  7  K.v.  v.  Gal.l.-.  1 1  l"  i'a.  St.  1^6.  7  Atl.  U.  791; 

305.  Alf.-li.T  V.  May.  115  Pa.  St.  51  (1886), 


so -2 


LAW    OK    WILLS. 


[§G02 


expressly  in  terms  limited  a  remainder  to  the  Ji<  irs  of  the  life 
tenant  or  to  the  heirs  of  his  body,  if  it  shall  conclusively  appear 
from  the  context  that  he  used  the  words  "  heirs  "  or  "  heirs  of  the 
body  "  as  meaning  "  children,"  the  operation  of  the  rule  is  ex- 
cluded and  the  children  will  take  as  purchasers  under  the  will.^ 
"What  particular  language  emplo3'^ed  by  the  testator  in  con- 
nection with  a  remainder  to  heirs  will  show  that  he  has  used 
the  word  "  heirs  "  as  synon3'mous  with  "  children  "  is  elsewhere 
fully  discussed.^  Here  it  need  only  be  remarked  that  if  tlic 
testator  directs  that  on  the  death  of  the  testator  the  remainder 
is  to  go  to  his  heirs  equalbj  or  in  crinal  s}inrei<,  or  if  he  provides 
that  upon  the  death  of  any  heirs  before  the  expiration  of  the 
life  estate  the  issue  of  said  heir  shall  receive  the  parents'  share, 
the  presum])tion  is  almost  irresistible  that  by  the  w' ord  "  heirs  " 
the  testator  means  the  children  of  the  life  tenant,  and  the  rule 
in  Shelley's  case  Avill  not  apply.''  So,  too,  where  the  testator, 
though  giving  real  property  absolutely  to  his  daughters,  pro- 
vided that  upon  the  death  of  either  her  share  should  descend 
to  her  children,  but  that  upon  the  death  of  eitluT  daughter 
Avithout  children  the  property  siiould  go  to  the  survivor,  the 
rule  in  Shelley's  case  is  not  applicable.* 


8  Atl.  R.  20;  Anderson  v.  Anderson, 
164  Pa.  St.  328,  30  Atl.  R.  304;  Reeder 
V.  Spearman,  6  Rich.  (N.  C.)  Eq.  188; 
Carrigan  v.  Drake.  36  S.  C.  354  (1891), 
15  S.  E.  R.  399;  Moon  v.  Stone,  19 
Gratt.  (Va..  1869),  130.  See  Stires  v. 
Van  Rensselaer,  2  Bradf.  72. 

iDunn  V.  Davis,  12  Ala.  137;  Rob- 
erts V.  Ogbourne,  37  Ala.  175;  Un- 
derwood V.  Robbins,  117  Ind.  308, 310; 
Kidgeway  v.  Lanphear,  99  Ind.  251, 
257;  Conger  v.  Lowe,  124  Ind.  868, 
374;  Ellis  v.  Essex  Bridge  Co.,  3 
Pick.  (Mass.)  243,  247;  Powers  v.  Por- 
ter, 4  Pick.  (Mas.s.)  198,  254;  Haley  v. 
Boston,  108  Mass.  575,  579:  Eldridge 
V.  Eldridge,  41  N.  J.  Eq.  89,  91;  Den 
V.  La q near,  4  N.  J.  Law,  301.  305; 
Wiggins  V.  Perkins,  64  N.  H.  30,  38; 
Bunnell  v.  Evans,  26  Ohio  St.  409; 
Reddish  v.  Carter.  32  Ohio  St.  1 ;  Urich 
V.  :Merkel,  81  Pa.  St.  332;  ante,  %  616. 

■^Ante,  %i  616,  017,  659. 


3  Bedford  v.  Jenkins,  90  N.  C.  254, 
2  S.  E.  R.  522. 

■*  Collins  v.  Williams,  98  Tenn.  525, 
41  S.  W.  R.  1056. 

"As  we  understand,  one  of  the 
principal  reasons  for  establishing  the 
rule  was  to  prevent  the  abeyance  or 
suspension  of  the  inheritance.  The 
rule,  therefore,  is  only  applied  to 
those  limitations  in  which  the  word 
'heirs'  is  used,  on  account  of  the 
maxim  that  nemo  est  hceres  viventis. 
But  the  rule  does  not  apply  when 
the  words  'lawful  issue,'  'issue.' 
'  .sons  '  or  '  children '  are  used  instead 
of  '  heirs.'  These  words  are  regarded 
as  words  of  purchase,  for  the  reason 
that  they  are  a  designation  of  per- 
sons to  take  originally  in  their  own 
right.  But  when  the  limitation  is  to 
the  heirs,  it  is,  in  legal  intendment, 
as  a  class  or  denomination  of  pei-sons 
to  take  in  succession  from  generation 


§  603.] 


ArPLICATIOX   OF    RULE    IX   SIIELLEy's    CASE. 


893 


§  603.  The  rule  in  Shelley's  case  as  applied  in  equity. — 

"We  have  seen  that  though,  as  a  general  rule,  equity  follows  the 
law  in  applying  the  rule  in  Shelley's  case,  courts  of  equity  were 
loth  to  accept  it,  where  can-ying  it  out  would  be  clearly  con- 


to  generation.  1  Preston  on  Estates, 
265.  As  Lord  Thiirlow  said  in  Brown 
V.  Morgan,  1  Brown  Ch.  216,  when 
tlie  heir  takes  in  the  character  of 
heir  he  must  take  in  the  quality  of 
heir,  and  all  heirs  taking  as  heirs 
must  take  by  descent.  Since  the 
sok-iiin  determination  in  Perrin  v, 
Blake,  in  the  exchequer,  the  rule  in 
question  has  been  regarded  as  one  of 
the  most  firmly  establislied  rules  of 
property,  and.  strictly  speaking,  no 
instance  can  be  adduced  of  a  depart- 
ure from  it.  .  .  .  The  requisites 
of  the  rule  are  that  there  must,  in 
tne  fii-st  instance,  be  an  estate  of 
freehold  devised;  there  must  be  a 
limitation  to  the  heirs  or  heirs  of  the 
Viody  of  the  person  taking  the  estate, 
by  that  name,  and  not  the  heirs  as 
meaning  or  ex[)lained  to  be  '  sons,' 
'cliildren,'  etc.:  that  these  heirs  must 
l>e  named  to  take  as  a  class  or  de- 
nomination of  persons  in  succession 
from  generation  to  generation,  and 
by  way  of  remainder,  or  at  least  so 
that  the  estate  to  arise  from  the  lim- 
itation to  the  heirs  and  the  estate  of 
freehold  in  the  ancestor  shall  both 
owe  their  effect  to  the  same  deed, 
will  or  writing;  and  that  the  several 
limitations  shall  give  interests  of  the 
name  qu:ility.  Ijoth  legal  and  eciuitu- 
bla  1  Preston  on  Estates,  266.  .  .  . 
That  this  rule  was  j)art  of  tlie  com- 
mon law  of  England,  and  an  estalv 
lislied  maxim  in  the  law  of  real  i»rui)- 
erty  in  that  realm,  for  nwirly  livo 
liundrcd  years,  is  not,  and  cannot  bo, 
denied."  The  court  tlien  proceeds  to 
Hhow  how  tho  rule  in  Shelley'H  case 
had  Ix^'Cdine  a  part  of  tlm  law  of  tlu) 
comiiiotiwcallh  b}' IIk*  ()|H*ratioii  of 
a  M|(iTifn'il  statut<',  adding:  "  Hen'  is 
an  umphatiu  declaration  of  the  (teo 


ple,  speaking  through  their  repre- 
sentatives in  the  general  assembly, 
that  *  the  common  law  of  England, 
so  far  as  the  same  is  applicable,  shall 
be  the  rule  of  decision,  and  shall  be 
considered  in  full  force  until  re- 
pealed by  legislative  authority.'  .  .  . 
The  only  question,  then,  must  be.  Is 
this  rule,  which  is  ailmitted  to  be  a 
rule  of  property  of  the  common  law, 
ap[)licable  to  our  condition. —  to  the 
genius  and  spirit  of  our  institutions? 
It  is  said  by  some  courts  of  great  re- 
spectability that  the  rule  was  estab- 
lished by  the  courts  of  England  in 
subserviency  to  the  feudal  policy 
prevailing  at  that  time,  and  to  the 
interest  of  the  lords,  whose  feudal 
rights  of  relief,  wardship,  marriage, 
etc.,  would  not  attach  upon  a  trans- 
mission by  purchase.  ...  It  has 
become  a  rule  of  property,  and  is,  we 
believe,  in  harmony  with  the  genius 
of  our  institutions  and  with  the  lil)- 
eral  and  commercial  spu-it  of  our 
age,  which  alike  abhor  the  locking 
up  and  rendering  inalienable  real 
estate,  and  has  challenged  and  re- 
ceived the  willing  obedience  and 
support  of  the  most  able  minds  of 
England  and  the  United  States. 
How  many  estates  may  bo  d( spend- 
ing in  this  state  upon  this  rule  we 
can  only  conjecture;  that  there  are 
very  many  there  can  be  no  dmiht. 
which  an  arbitrary  declaration  by 
this  court  of  the  inapplicability  of 
the  rule  to  our  institutions  would 
unsettle  and  destroy.  Tho  courts  of 
every  state  of  (his  great  Union  in 
which  the  conuuon  law  has  been 
ado|»ted  liavr  without  exception  U|>- 
In-ld  tlu^  ride  and  guided  their  de- 
cisions by  it."  By  tli<!  court  in  Baker 
v.  Scott,  02  111.  m,  m  et  se«i. 


891  LAW    OK    WILLS.  [§  GG3. 

trary  to  the  iiitontion  of  the  testator.  Thus,  in  construing  the 
limitations  in  a  nuirriage  settlement,  equity  looked  rather  to 
the  purpose  of  tlie  settlor,  which  was  as  much  to  make  a  pro- 
vision for  the  children  of  the  marriage  as  for  the  parent,  rather 
than  at  the  technical  w^ords.  So  if  property  was  settled  on 
marriage  upon  A.  for  life  and  the  heirs  of  his  body,  who  would 
most  likely  be  his  children,  an  estate  for  life  would  be  decreed 
to  the  parent  and  an  estate  tail  to  his  eldest  son,  in  order  to 
carry  out  the  manifest  intention  of  the  settlor.' 

So  also  in  the  case  of  executory  trusts  a  distinction  was  made 
and  the  rule  was  not  applied.  But  aside  from  this,  the  rule  in 
Shelley's  case  is  applied  by  courts  of  equity  to  the  same  extent 
as  by  the  courts  of  law,  though  only  if  the  estate  in  the  an- 
cestor and  the  estate  in  the  heir  or  heirs  are  of  the  same  char- 
acter and  quality;  i.  e.,  if  both  estates  are  legal,  or  if  both  are 
equitable.  If  the  estate  limited  to  the  ancestor  be  a  trust  es- 
tate for  his  life,  and  the  estate  limited  to  the  heirs  be  a  legal 
estate  in  fee,  the  two  estates  will  not  coalesce  into  a  fee  simple 
in  the  ancestor,  but  the  estate  in  the  heirs  will  be  a  contingent 
remainder,  and  of  course  they  will  then  take  as  purchasers.' 

Therefore  the  rule  does  not  apply  to  a  devise  in  trust  of 
the  income  of  real  property  made  to  the  children  of  the  tes- 
tator during  their  respective  lives,  and  upon  the  death  of  each 
the  fee  simple  of  the  land  to  their  heirs,^  nor  to  a  devise  by 
which  the  income  of  land  is  to  be  devoted  to  the  support  of  A. 
during  his  life,  with  power  to  apply  the  principal  to  his  sup- 
port, and  after  his  death  the  land  to  go  to  A.'s  heirs  in  fee.* 

1  Trevor  v.  Trevor,  1  Eq.  Cas.  Ab.  4  R.  I.  276;  Bucklin  v.  Creighton,  18 
387,  pi.  7;  Streatfield  v.  Streatfield,  R.  I.  325,  27  Atl.  R.  221;  Cowing  v. 
Cases  Temp.  Talb.  176;  Bale  v.  Cole-  Dodge  (R.  I.,  1897),  35  Atl.  R.  300; 
man,  1  P.  W.  142.  Howard  v.  Trustees,  41  Atl.  R.  156 

2  Baker  v.  Scott,  62  111.  86;  Beacroft  (R.  I.,  1898);  Austin  v.  Payne,  8  Rich, 
v.  Strawn,  67  111.  28;  Zuver  v.  Lyons,  (S.  C.)  Eq.  9;  Croxall  v.  Sherard,  .'5 
40  Iowa,  510;  Hanna  v.  Hawes,  45  Wall.  268;  Green  v.  Green,  23  Wall. 
Iowa,  437,  439,  441;  Griffith  v.  Plum-  (U.  S.)  489,  492;  Lord  Say  v.  Jones,  3 
luer,  32  Md.  74;  Gushing  v.  Blake.  30  Bro.  P.  C.  113;  Papillon  v.  Voice.  3 
N.J.  Eq.  689,  697;  Payne  v.  Sale,  2  P.  W.  471,  477;  Law  v.  Wilson,  2  T.  R. 
D.  &  Bat.  (N.  C.)  Eq.  453.  457;  Arm-  444;  Van  Grutten  v.  Foxwell,  77  L.  T. 
strong  v.  Zane,  12  Ohio,  287,  289;  In  170,  66  L.  J.  &  B.  745;  Fearne,  C.  R., 
re  Hemphill's  Estate,  18  Pa.  Co.  Ct.  p.  124;  Austin  v.  Taylor,  1  Eden,  361, 
R  527,  5  Pa.  Dist.  R  690;  Little  v.  Amb.  370. 

Wilcox,  119  Pa.  St.  439, 13  AtL  R  468;        » In  re  Hemphill's  Estate,  18  Pa.  Co. 

In  re  Gerhard's  Estate,  28  Atl.  R  684,    Ct.  R  527. 

160  Pa.  St.  253;  Eaton  v.  Tillinghast,        *  Bucklin  v.  Creighton,  18  R  L  325, 


603.] 


ArrLICATION    OF    RULE    IX    SHELLEy's    CASE. 


so; 


Thus,  where  landed  property  or  a  money  fund  is  given  in 
trust  to  pay  the  income  to  several  children  for  their  lives,  the 
income  to  be  free  from  their  debts,  and  on  their  death  the 
corpus  to  go  to  their  children;  ^  or  where  the  trust  is  then  to 
terminate  and  the  legal  title  is  to  go  to  the  heirs  of  the  bodies 
of  the  cestuis  que  trustent;  ^  or  land  is  devised  in  trust  for  the 
widow  of  the  testator,  and  at  her  death  the  land  is  to  be  equally 
divided  between  the  heirs  of  her  bod}',^  a  bequest  of  a  fund  to 
be  held  in  a  trust  for  a  legatee  until  he  reaches  a  specified  age, 
and,  in  case  of  his  death  under  that  age,  the  money  is  to  be 
paid  to  his  heirs;*  or  money  is  devised  in  trust  for  a  married 
woman  for  her  life  for  her  separate  use,  and  after  her  death  to 
her  heirs  or  issue  in  fee  simple,  the  rule  in  Shelley's  case  does 
not  apply.^  But  where  a  trust  was  for  a  married  woman  dur- 
ing her  coverture,  with  a  power  of  appointment  of  the  legal 
estate  in  her,  and  a  devise,  in  default  of  appointment,  to  her 
heirs,  it  was  held  that  she  would  take  the  fee  herself.*' 


27  Atl.  R  221.  In  the  very  recent 
case  of  Van  Grutten  v.  Foxwell,  66 
L.  J.  Q.  B.  745.  App.  Cases,  648,  77 
Law  Times  (N.  S.),  170, 46  Weekly  Re- 
ports, 426,  an  estate  was  devised  in 
trust  to  "permit  and  suffer"  the 
cliiid  of  the  testator  to  receive  the 
rents  and  pi-ofits  durinj^  liis  life,  and 
that,  on  his  death,  the  trustees  should 
continue  to  stand  seized  for  the  bene- 
fit of  the  heirs  of  the  body  of  the  life 
tenant,  tlie  sliares  of  the  heirs  to  be 
conveyed  to  them  when  they  should 
attain  the  age  of  twenty-one,  the  in- 
fX)me,  in  tlie  meantime,  to  be  applied 
to  the  maintenance  of  sucli  heirs  in 
sucli  manner  as  the  trustees  shouhl 
fliro<-t.  Tlie  court  held  that  notwitli- 
standing  the  use  of  tlie  words  ";;<•/•- 
viit  and  Kiifftr,"  the  h>t^al  estate  n;- 
mained  in  the  trustees  throughout, 
ami  that  the  rule  in  Shelley's  case  is 
apjilirablo  to  thfs  legal  and  to  the 
<-<|uitable  interest  as  well. 

'  Appeal  of  |{/«iding  Trust  Ox.  KJ3 
I'.i.  Kt.  ;JJ2  i\H'JO),  19  Atl.  It.  5.>2,  20 
W.  N.  (;.  y. 

'  Kdmondson  v.  Dystin,  2  Cm,  (1817), 


307,  320;  Ward  v.  Saunders,  3  Sneed 
(Tenn.),  391. 

3  Settle  V.  Settle,  10  Humph.  (29 
Tenn.)  474. 

*  Bennett  v.  Bennett,  00  111.  App.  28. 

5  Ware  v.  Riciiardson.  3  Md.  (1852), 
505;  Gadsden  v.  Desportes,  39  S.  C. 
131,  17  S.  E.  R  706. 

«  Williams'  Appeal,  83  Pa.  St.  377. 
See  also  Ward  v.  Amory.  1  Curt.  C.  C. 
(1853).  419.  The  rule  in  Shelley's  case 
has  no  application  to  a  bequest  to  a 
trustee  of  a  fund  to  be  held  by  him 
until  the  cestui  que  trust  reaches  a 
specified  age.  and,  in  case  of  the  hit- 
ter's death  before  reaching  .such  age, 
the  fund  to  bo  paid  to  his  heirs. 
Bennett  v.  Bennett,  06  111.  App.  2M. 
The  rule  in  Shelley's  case  could  not 
ap|>ly  to  a  devi.so  to  a  daughter  for 
her  natural  life,  and  at  her  death  to 
the  issue  of  her  body  who  may  tlien 
bo  living,  because  the  estate  given  to 
the  is.sue  was  a  legal  estate,  and  that 
to  the  daughter  an  ocpiitabh^  e.stat*'; 
the  devise  further  jiroviding  that  her 
life  estate  should  Ih«  for  her  sole  iiiid 
Beparat(!  u.se,  and  appointing  trustees 


S96 


LAW    OF    ■WILLS. 


[§  CG4. 


§  604.  Trusts  executory  aud  executed  defiued  aud  distin- 
guished.—  Before  considering  the  application  of  the  rule  in 
Shellcv's  case  to  executory  trusts,  we  must  define  executory 
trusts  and  distinguish  them  from  trusts  executed.  All  active 
trusts  are,  in  one  sense,  executory,  for  something  remains  in 
every  case  for  the  trustee  to  do.  He  must  cj-ecute  the  duties  of 
his  trust.  But  in  the  present  instance  the  distinction  is  one 
■which  arises  out  of  the  action  and  the  language  of  the  creator 
of  the  trust. 

If  a  testator  limits  an  estate  in  trust  in  such  terms  that  the 
trust  in  its  original  form  is  a  complete  and  final  expression  of 
the  intention  of  the  testator,^  and  nothing  remains  for  the 
trustee  who  is  thus  appointed  by  the  testator  to  do,  except  to 
carry  into  effect  the  express  directions  given  him,  the  trust  is 
executed.-  An  example  of  an  executory  trust  is  one  expressly 
limited  in  the  will  for  the  payment  of  the  income  to  a  desig- 
nated person  for  a  particular  purpose,  as  for  his  support  and 
maintenance.  If  the  testator  has  named  a  trustee  who  is  to 
take  the  legal  title,  and  who  is  to  apply  the  income  of  the  fund 


to  preserve  it.  Gadsden  v.  Desportes, 
39  S.  C.  131. 17  S.  E.  R.  706.  Testator 
devised  property  in  trust  to  pay  the 
income  to  liis  daugliter  for  life,  and 
after  her  decease  "  in  trust  to  and 
for  the  only  proper  use,  benefit  and 
behoof  of  such  person  or  persons  as 
would  be  entitled  to  the  same  "  by 
the  laws  of  the  state,  "  if  my  said 
daughter  had  survived  her  mother 
and  husband,  .  .  .  and  died  in- 
testate, seized  and  possessed  of  the 
said  premises,  and  for  sucli  estate 
and  estates  as  sucli  person  or  persons 
would  in  such  case  be  entitled  to  by 
the  laws  aforesaid."  It  was  lield  that, 
because  of  the  exclusion  of  the  hus- 
band and  mother,  the  rule  in  Shel- 
ley's case  did  not  apply,  and  the  de- 
vise created  a  valid  trust  in  favor  of 
those  entitled  in  remainder,  and  it 
was  immaterial  that  the  husband 
and  mother  died  before  the  daugh- 
ter.   In  re  Dorney's  Estate,  20  Atl. 


R.  645;  Appeal  of  Kuntzleman,id.;  186 
Pa.  St.  142,  26  W.  N.  C.  445. 

'  For  other  definitions  of  executed 
and  executory  trusts  see  Lewin  on 
Trusts,  pp.  Ill  et  seq. 

2  The  distinction  between  trusts 
executed  and  trusts  executory  was 
established  in  1705  in  Leonard  v.  Sus- 
sex, 2  Vern.  526,  and  affirmed  in 
Lord  Glenorchy  v.  Bosville,  Gas. 
Temp.  Talb.  3,  in  1733.  See  also  Lit- 
tle v.  Wilcox,  119  Pa.  St.  439,  13  Atl. 
R.  468;  Mullany  v.  MuUauy,  4  N.  J. 
Eq.  16,  28;  Price  v.  Sisson,  13  N.  J. 
Eq.  168;  Gushing  v.  Blake,  30  N.  J.  Eq. 
689,  699;  Garradine  v.  Gurradine,  33 
Miss.  698,  729;  Saunders  v.  Edwards, 
2  Jones'  (N.  G.)  Eq.  134,  137;  Wiley  v. 
Smith,  3  Ga.  551, 559;  Wood  v.  Stubbs, 
29  S.  E.  R.  119  (Ga,,  1897);  Living- 
stone v.  Murray,  67  Barb.  (N.  Y.)  214, 
220;  Wagstaife  v.  Lowery,  23  Barb. 
(N.  Y.)  209,  221;  Wood  v.  Burnham, 
6  Paige.  513,  26  Wend.  (N.  Y.)  20; 
Garrigan  v.  Drake,  36  S.  C.  354. 


§  CG4:.]  APrLICATIOX   OF   KULE    IN    SHELLEy's    CASE.  897 

in  a  particular  mode  pointed  out  by  him,  and  the  trustee  is  left 
no  discretion  as  to  the  mode  or  amount  of  income  to  be  applied, 
the  trust  is  executed.  And  it  is  well  settled  from  the  very 
earliest  times  that  the  rule  in  Shelley's  case  is  to  be  applied  to 
such  trusts  to  the  same  extent  as  it  is  to  legal  estates.' 

A  trust  is  said  to  be  executory  or  directory  where  the  bene- 
ficiaries do  not  take  their  equitable  interests  dlredlij  under  the 
will  appointing  the  trustee,  but  where  something  is  to  be  done 
in  the  way  of  a  conveyance  or  transfer  of  the  legal  title  by  the 
trustee  in  order  that  the  disposition  shall 'be  complete.- 

In  the  case  of  an  executed  trust,  the  testator,  having  clearly  in 
mind  what  he  intends  to  do,  and  how  he  intends  to  benefit  the 
<'e.stuiqii€  trust,  has  conveyed  the  legal  and  equitable  interests  in 
terms  which  are  perfect,  final  and  complete.*  His  intention  is 
expressed  in  formal  language.  The  trust  is,  in  consequence, 
beyond  the  control  of  the  court,  and  cannot  be  moulded  or 
fashioned  in  any  way.  In  the  case  of  an  executory  trust, 
where  a  plan  is  to  be  arranged  b}''  the  person  who  is  named  as 
a  trustee  to  carry  out  the  intention  of  the  donor,  courts  of 
equity  do  not  regard  themselves  as  strictly  bound  by  the  rules 
of  the  common  law,  as  in  the  case  of  an  executed  trust.  In 
the  latter  case  equity  will  follow  the  law.     But  where  the  tes- 

1  Carradine  v.  Carradine,  33  ]\Iiss.  305.     "A  trast  executed  is  wliere  the 

69.":i,  729:  Tallinan  v.  Wood,  26  Wend,  party  lias  given  complete  directions 

<X.  Y.)  9,  20;  Livingstone  v.  Murray,  for  settling  his  estate,  with  perfect 

67    Barb.    214,   220;    Edmondson  v.  limitations;    an   executory  trust   is 

Dyson.  2  Ga.  307,  321;  Long  v.  Lam-  where  the  directions  are  incomplete, 

ing,  2  Burr.  1108;  AVatts  v.  Wall,  1  P.  and  are  rather  minutes  or  directions 

W.  109;  Preston,  Est.  362;  Fearne,  C.  lor  ti  settlement."    Neeves  v.  Scott, 

R.  1."j7;  Bale  v.  Coleman,  2  Vcrn.  670,  9  How.  (.jO  U.  S.,  1850),  211.  However. 

1  P.  W.  142,  1  Ves.  151;  Papillon  v.  a  mere  direction  to  convey  tlie  legal 

Voice,  2  P.  W.  471;  Wright  v.  Pear-  title,  where  the  limitations  of  tlie 

w>n  (1758;,  1  Eden,  125.  trust  are  complete,  does   not  ulono 

-"A  trust  is  executory  when  it  is  make  the  trust  an  executory  trust, 

to  Ixj  i>erlected,  at  a  future  period,  Kgcrton  v.  Lord  Brownlow,  4  II.  I*  C 

by  a  conveyance  or  settlement,  as  in  1210;  Gushing  v.  Blake,  30  N.  J.  E<i. 

case  of  a  conveyance  to  B.  in  trust  689,  700;  Rowan  v.  Chase,  94  U.  S. 

t>}  convey  to  C.   It  is  executed  either  (1876).  818;  Phipps  v.  Ackers,  9  CI.  & 

when  the  legal  estate  pass»,'s.  as  in  a  Fin.  5H3,  .591,  599,  601 ;  Earl  Stamford 

•  onveyance  to  B.  in  trust  or  for  tlio  v.  IIr)iiart.  3  B.  P.  C  Toml.  31;  Wliito 

use  of  ('.,  or  when  only  the  e<iuital>lo  v.  Cartrr,  2  Eden,  366,  .Amldt  r,  670; 

title  (jHH-ses,  as  in  the  casi;  of  a  <'oii-  Hoherts  v.  Di.vwi-il,  1  Atk.  607. 
vi-yanco   to  B.   to   the   us<!  of  C.   in         ■' Wili-y  v.  Smith,  3  ( Ja.  551,  050. 
tru-st  for  I)."  4  Kent,  Comm.,  pp.  3<JI, 
57 


89S  LAAV    OF    WILLS.  [§  GGi. 

tator  has  scon  fit  to  state  his  intentions  in  Gfcncral  and  vaffue 
expressions,  which  are  usually  informal  and  sometimes  im- 
proper, leaving  the  particular  mode  in  which  these  intentions 
are  to  be  carried  out  to  the  discretion  of  his  trustee,  the  court 
of  equity  will  take  the  matter  into  its  own  hands,  and  will  de- 
cree a  conveyance  or  settlement  according  to  the  general  pur- 
pose and  intention  of  the  testator.  The  terms  in  wliich  the  trust 
is  limited  are  not  taken  in  a  technical  sense,  but  are  merely 
considered  in  the  nature  of  memoranda,  or  general  instructions 
for  a  fiduciary  disposition,  to  be  further  elaborated  in  its  details 
at  a  future  time  by  the  trustee.^ 

Under  these  circumstances  courts  of  equity,  in  decreeing  a 
conveyance  or  a  settlement  of  a  trust  estate,  do  not  regard 
themselves  as  bound  by  the  rule  in  Shelley's  case,  but  will  strive 
to  carry  out  the  intention  of  the  testator;-  for,  in  construing 
words  by  which  an  executory  trust  is  created,  the  court  "  ex- 
ercises a  large  authority  in  subordinating  the  language  to  the 
intent."  *  This  equitable  doctrine  has  been  applied  in  England 
to  a  very  numerous  class  of  cases  in  which  marriage  settlements 
have  been  involved.* 

Thus,  in  the  case  of  a  marriage  settlement,  the  evident  pur- 
pose of  the  settlor  is  to  provide  for  the  children  of  the  marriage, 
if  any  there  shall  be.  This  fact  furnishes  an  indication  of  an 
intention  which  is  not  always  present  in  wills.     Such  being  the 

1  The  distinction  between  execu-  meaning.    It  is  then  the  duty  of  the 

tory  and  executed  trusts  is  approx-  draftsman  to  disregard  tlie  particu- 

imately  illustrated  by  the  analogous  lar  language  of  the  testator,  and  so 

case  of  the  general  instructions  given  to  frame  the  will  in  appropriate  and 

by  a  testator  to  his  professional  ad-  technical  terms  that  tiie  real,  and 

viser  for  the  drafting  of  his  will,  and  not  the  apparent,  intention  of  the 

the  will  when  it  is  completed.     The  testator  may  be  carried  out. 

testator  inaj'  employ  the  ordinary  -  See  cases  cited  in  §  GG3. 

non-technical  language  of  the   lay-  3  Lord  Westbury  in  Sackville-West 

man  who  is  not  conversant  with  legal  v.  Ilolmesdale,  L.  E.  4  H.  L.  543. 

phraseology,  and  may  depend  upon  *  The  distinction  between  the  two 

the  draftsman  to  state  his  intention  classes  of   trusts    is   said    by  Lord 

formally  and  technically.  The  drafts-  Hatherly,  in  Sackville-West  v.  Lord 

man,  like  the  court  of  equity  in  con-  Holmesdale,  L.  R  4  H.  L.  543.  on  page 

struing  an  executory  trust,  under-  565,  to  have  had  its  origin  in  a  device 

stands  thoroughly  the  testator's  in-  to  avoid  the  operation    of  the  ex- 

tention,  though  it  has  been  stated  in  tremely  technical  doctrine    of  the 

terms  which,  taken  in  their  strict  rule  in  Shelley's  case, 
sense,  convey  an  entirely  different 


§  GG5.]  APPLICATION    OF    KULE    IN    SHELLFA-'s    CASE.  S90 

evident  intention  of  the  person  making  a  settlement,  no  reason 
exists  why  his  legitimate  intention  shonld  be  defeated  because 
tiie  actual  and  formal  agreement  of  the  parties  made  in  writ- 
ing is  that  the  estate  is  to  be  limited  to  the  father  for  life,  with 
a  remainder  to  the  heirs  of  his  body.  Where  the  settlement  is 
made  in  such  terms,  the  rule  in  Shelley's  case,  applied  to  the 
strict  language  of  the  instrument,  would  give  the  parent  (tlie 
father)  an  estate  in  fee  tail,  which  he  might  convey  to  the  ex- 
clusion of  the  issue  of  the  marriage.  Hence,  courts  of  equity 
have  uniformly  decreed  a  strict  settlement  under  such  an  agree- 
ment by  which  the  property  is  limited  to  A.  for  his  life,  with 
a  remainder  to  his  children  as  purchasers.  But  in  the  case  of 
a  will,  the  intention  of  the  testator  can  only  be  ascertained 
from  the  will;  and  while,  in  the  case  of  a  devise  to  A.  for  life, 
and  after  his  death  to  his  issue  or  children,  it  may  be  the  in- 
tention to  benefit  the  children  as  purchasers,  there  is  no  pre- 
sumption one  way  or  the  other.  If,  hovrever,  the  executory 
trust  is  created  by  a  will,  and  it  appears  that  the  words  of  the 
testator  are  not  used  in  a  strict  sense,  the  court  will  frame  a 
trust  to  carry  out  his  intention.^ 

§  G(>5.  Executory  trusts  iu  wills. —  Although  a  court  of 
equity  may  presume,  in  the  case  of  a  marriage  settlement,  that 

iln  Blackburn  v.  Stables,  3  V.  &  creeing  a  strict  settlement.  Atesta- 
B.  (1814),  :J67,  on  page  3C9  the  court  tor  gives  arbitrarily  what  estate  he 
Kiid:  "I  know  of  no  difference  be-  thinks  fit.  There  is  no  presumption 
tween  an  executory  trust  in  marriage  that  he  means  one  quantity  of  inter- 
articles  and  in  a  will,  except  that  tiie  est  rather  than  another, —  an  estate 
object  and  purpose  of  the  former  fur-  for  life  rather  than  in  tail  or  in  fee. 
nish  an  indication  of  intention  which  The  subject  being  mere  bounty,  the 
must  be  w;inting  in  the  latter.  When  intended  extent  of  that  Ixninty  can 
the  object  is  to  make  a  ])rovision  by  bo  known  only  from  the  words  in 
the  settlement  of  an  estate  for  the  which  it  is  given;  but,  if  it  is  clearly 
issue  of  a  marriage,  it  is  not  to  bo  to  be  ascertained  from  anything  in 
presumed  that  tlu  parties  meant  to  the  will  that  the  testator  diil  not 
put  it  in  the  power  ui  the  father  to  mean  to  use  the  ex|ircssions,  whicii 
deffe'it  that  purjKise  and  to  appropri-  he  has  employed,  in  their  strict, 
ate  the  estate  for  himself.  If,  there-  proper,  technical  .sense,  tlio  court  in 
fore,  the  agreement  is  to  limit  an  decreeing  such  settlement  as  he  lian 
♦isUito  for  lifi',  with  remainder  to  tlio  directed  will  depart  from  his  words 
IieirH  of  tlio  iKjdy,  tlie  court  < I e< Tees  in  order  to  execute  liis  intention; 
u  strict  Hetllement  in  conformity  to  but  the  court  must  necessarily  fol- 
iho  preKiimable  int(;ntion;  but  if  a  lf)\v  his  words  unh'Rs  he  has  himself 
will  directs  a  limit.iliorj  for  life,  with  shown  that  lie  diii  not  mean  to  uso 
remaind<T  to  the  heirs  of  the  Uidy,  them  in  their  proi)er  sense." 
the  court  Iuih  uu  hucIi  ground  for  du- 


POO  LAW    OF    WILLS.  [§  G65. 

tho  creator  of  the  equitable  estate  desired  only  to  give  the  par- 
ent a  life  estate,  no  such  presumption  can  invariably  be  indulged 
in  tlic  case  of  a  will.  Thus,  where  land  was  devised  to  trust- 
ees and  their  heirs,  with  a  direction  to  settle  it  on  the  two  sons 
of  the  testator  and  the  heirs  of  their  bodies,  with  a  reniaiiuh'r 
over,  "  taking  special  care  in  tlie  settlement  that  it  should  not 
he  in  the  power  of  either  son  i^  dock  the  entail  given  him  during 
life,''''  the  court  decided  that  a  settlement  giving  the  sons  an  es- 
tate for  life  only  should  be  decreed,  as  otherwise  the}''  would 
have  power  to  bar  the  estate  in  tail.^  So  also,  where  a  testa- 
tor directed  trustees  to  convey  land  for  the  separate  use  of  his 
daughter  for  life,  so  that  her  hushand  should  have  no  henefit^ 
with  a  remainder,  on  her  dcatli,  to  the  heirs  of  her  body  in 
trust,  the  court,  by  Lord  Ilardwicke,  refused  to  apply  the  rule 
in  Shelley's  case  to  the  remainder,  for  to  do  so  would  permit 
the  husband  to  claim  by  the  right  of  curtesy.-  If  the  trustees 
are  directed  to  settle  an  estate  on  A.  and  the  heirs  of  his  body, 
so  that  if  he  should  die  without  leaving  issue  the  property  may 
descend  unincuinbered  to  B.,'  or  if  a  direction  is  inserted  that  a 
settlement  is  to  be  made  on  A.,  and  the  heirs  of  his  body  or 
issue  in  tail  are  to  "take  in  succession  and  priority  of  birth," 
and  "  the  estate  is  to  be  settled  as  counsel  shall  advise,''^  a  strict 
settlement  will  be  decreed.* 

By  some  of  the  cases  a  distinction  is  made  between  a  devise 
directing  the  trustees  of  a  fund  to  purchase  land  and  to  settle  it 
themselves,  and  a  devise  in  trust  of  money  to  purchase  land  to  he 
held  on  trusts  that  the  testator  points  out.  In  the  former  case 
the  trust,  being  wholly  executory,  and  its  limitations  being 
wholly  left  to  the  discretion  of  the  trustees,  does  not  call  for 
the  application  of  the  rule  in  Shelley's  case.  But  in  the  latter 
case,  the  testator  having  been  his  own  conveyancer,  the  court 
will  apply  the  rule  under  consideration,  and  a  strict  settlement 
for  life,  with  a  remainder  to  the  heirs,  will  not  be  decreed.' 

1  Leonard  V.  Sussex  (ITOl),  2  Vern.  *  White  v.  Carter  (1760),  2  Eden, 

526,  327.     See  also  Papillou  v.  Voice,  366,  308,  Amb.  670. 

2  P.  W.  471,  478.  s  Austin  v.  Taylor,  1  Eden  (1758), 

■2  Roberts  v.  Dixsvell  (1733),  1  Atk.  361,  309,  Amb.  376.     See  also  East  v. 

607,  609;    Parker  v.  Bolton,  5  L.  J.  Twyford,  9  Hare,  713,  733.  4  H.  L,  517; 

(N.  S.)  Ch.  98.  Franks  v.  Price,  3  Beav.  182. 

3  Thompson  v.  Fisher,  L.  R.  10  Eq. 
207,  209. 


§  G65.]         APrLicATiox  of  kule  ix  Shelley's  case.  001 

On  the  other  hand,  there  are  very  many  cases  in  which  this 
distinction  is  repudiated,  and  the  trust  is  regarded  as  execu- 
tory, even  where  the  testator  has  in  detail  pointed  out  the  lim- 
itation of  the  estate  which  he  intended.^ 

But  it  has  been  held  that,  although  the  trust  is  wholly  execu- 
tory in  so  far  as  the  testator  has  directed  his  trustees  to  pur- 
chase land,  and  to  convey  it  as  pointed  out  by  him,  if  he  has 
expressly,  in  terms  technically  correct,  directed  that  the  land 
shall  be  settled  as  an  estate  in  fee  simple,  or  an  estate  in  tail, 
the  court  has  no  right  to  interpose  merely  because  a  conve}'- 
ance  is  directed  and  decree  a  strict  settlement.-  The  reasons 
against  interference  in  such  cases  are  very  strong  wliere  the 
trust  contains  no  express  limitation  for  life,  and  no  limitation 
to  a  trustee  to  preserve  contingent  remainders,  and  no  clause 
barring  impeachment  for  waste,  or  directing  that  the  devisee 
shall  not  bar  the  entail.'  The  rule  distinguishing  between  exec- 
utory trusts,  and  the  principles  of  equity  which  exempt  such 
trusts  from  the  application  of  the  rule  in  Shelley's  case,  are 
generally  applicable  in  the  states  of  the  American  Union.* 
Thus,  a  devise  in  trust,  the  trustee  to  convey  to  A.  for  life, 
with  a  remainder  to  his  right  heirs  forever,  has  been  held  to 
give  A.  an  estate  for  life,  with  a  contingent  remainder  to  his 
heirs.* 

1  Harrison  v.  Xaylor,  3  Cox,  247,  The  court  held  that  tlioiigh,  if  it  had 
251.  beeu  an  immediate  devise  to  A.  and 

2  Gushing  v.  Blake,  30  N.  J.  Eq.  689,  lier  issue,  A.  would  have  taken  an 
TOO.  estate  tail,  yet,  being  executory,  it 

'  Blackburn  v.  Stables,  2  Ves.  &  B.  must  be  executed  in  a  more  carefid 

367,369;  Marshall  V.  Bousfield,  2  Mad.  manner  so  as  to  more  closely  fulfill 

166.  the  intention  of  the  testator.     A  con- 

*See  cases  cited  in  note  2,  p.  896.  veyance  to  A.  for  life,  remainder  to 

*  Wood  V.  Burnham,  6  Paige  (N.  Y.),  her  husband  for  life,  remainder  to 

S73,  57H.  26  Wend.  9,  20.     In  the  case  her  lirst  and  every  other  sons,  re- 

of  lyonl  (Jlenorcliy  v.  Bosville,  Cases  mainder   to  tlie   dauf;:ht('rs,  was  or- 

Temp.  Tal.  3,  tlie  devise  was  to  trust-  dered.     So,  in  Slielton  v.  AVatson.  1(1 

w.-s  in  fee  to  receive  rents  and  profits  Sim.  .■)42,  wliere  tlio  testator  directed 

and  piiy  them  to  A.  until  her  mar-  "an  estate  to  be  purchased  and  maile 

riage,  and  to  pay  the  debts  out  of  hereditary  and  settled  ujion  my  here 

the  residue,  and  aftiT  their  payment  ••(instituted  iieir,  and  to  descen<l  to 

to  hold  in  trust  for  A.  untd  her  mar  Ids  lieir,  or  dying  witliout   issue  as  I 

riage,  and  on  that  event  to  coi!vey  it  shall  now  provide,  ami  1  liereby  c«jn- 

to  lier  for  her  life,  without  im|K?ach-  stitute  W.  S.  my  lieir  ami  succe.sHor, 

ment  of  waste,  remainder  to  h<,'r  bus-  and  tlie  sjiid  estate  when  purchiised 

kind  for  life,  remainder  to  her  issue."  to  Ir;  settled  on  him,  his  heirs  and 


902  LAW   OF   AVII.LS.  '  [§  GGQ. 

§  600.  Tho  rule  in  Sholloy's  case  in  the  United  States.— 

The  rule  in  Sliclk^y's  case,  forming,  as  it  does,  a  constiluent  part 
of  the  English  common  law,  was  adopted  by  the  courts  of  the 
thirteen  colonies,  and,  upon  their  becoming  states  of  the  Ameri- 
can Union,  the  rule  was  re-alfirmed  in  the  respective  state  courts. 
It  is  still  a  part  of  the  American  common  law,  except  so  far  as 
it  has  been  expressly  abolished  or  modified  by  statute. 

It  seems  to  be  no  objection  to  the  operation  of  the  rule  that 
it  was  wholly  of  feudal  origin,  and  that  the  conditions  which 
in  England  caused  its  creation  and  demand  its  application 
have  not  at  any  time  existed  in  America.  Most  of  the  rules  of 
the  American  law  of  real  property  not  enacted  by  statute  are 
of  feudal  origin,  and,  while  such  rules  have  been  repealed  or 
modified,  to  make  the  American  law  of  real  propert}^  conform 
to  the  new  and  peculiar  conditions  of  society  which  exist  in 
America,  this  rule  is  still  a  part  of  the  common  law  in  all  cases 
where  it  has  not  been  expressly  repealed.^ 

But  the  legislatures  of  very  many  of  the  states,'  having  in 
view  not  so  much  its  English  origin  as  the  fact  that  in  most 
cases  it  nullifies  the  intention  of  the  testator,  have  abolished 
the  rule  by  statute.    In  the  majority  of  cases  these  statutes  are 

successors  in  tlie  male  line,  lawfully  24  Miss.  (1852),  343,  361;  Dennett  v. 

begotten.    And  in  case  W.   S.   die  Dennett,  43  N.  H.  499,  502;  Den  v. 

without  issue  then  a  similar  settle-  Baldwin,  21  N.  J.  L.  395,  400;  Stires 

ment  to  be  made  on  his  two  brothers,  v.  Van  Rensselaer,  2  Bradf.  (N.  Y.) 

but  the  estate  shall  never  pass  out  172;    Cipperly  v.  Cipperly,  40  How. 

of  his  name  and  family."  the  court  Pr.  (N.  Y.)  269;  Post  v.  Post,  47  Barb, 

held  tliat  W.  S.  and  his  brothers  took  (N.  Y.)  72,  90;  Brown  v.  Lyon,  6  N.  Y. 

life  estates.  (1852),  419;    Armstrong  v.  Zane,  13 

1  Hamilton  v.  Hempstead,  3  Day  Ohio  (1843),  287,  290;  Cooper  v.  Cour- 

(Conn.,  1809),  332;  Welles  v.  Olcott,  1  sey,  2  Coldw.  (Tenn.)  416;  McFeely 

Kirby  (Conn.,  1786),  118;  Choice  v.  v.   Moore,   5    Ohio,   465,   466    (1832); 

Marshall,  1  Kelly  (Ga.,  1846),  97;  Bris-  Allen  v.  Markle,  36  Pa.  St.  (1859),  117; 

lain  V.  Wilson,  63  111.  173,  175;  An-  Steiner  v.  Kolb,  57  Pa.  St.  123:  Quill- 

drews  v.  Spurlin,  35  Ind.  (1870),  262,  man  v.  Custer,  57  Pa.  St.  (1868),  125; 

264;  Brown  v.Alden,  14  B.Mon.(Ky.)  Ives  v.  Harris,  7  R.  I.  413;   Hinson 

143;  Johnson  V  Johnson,  2  Met.  (Ky.)  v.  Pickett,  1  Hill  (S.  C),  37;  Polk  v. 

331 ;  Lyles  v.  Diggs,  4  Har.  &  J.  (^Id.,  Paris,  9  Yerg.  (Tenn.)  209, 231 ;  Brooks 

1818), 431;  Griffith  v.Plummer.  32 Md.  v.  Evetts,  33  Tex.  742;  Giddings  v. 

(1869),  77;  Fulton  v.  Harmon,  44  Md.  Smith,  15  Vt.  (1843),  344;  Bramble  v. 

(1875),  251,  257;  Davis  v.  Hayden,  9  Billups,4Leigh(Va.,lS32),90;2Wash. 

Mass.   (1813),   514;    Steel  v.  Cook,  1  R.  P.  274;  Willard,  R.  E.  166;  2  Bou- 

Metc.  (Mass.)  281;  Fraser  v.  Chene,  vier's  Inst.  290;  4  Kent,  Com.  502. 

2  Mich.  (1851),  81 ;  Powell  v.  Brandon,  2  See  post,  §  667. 


§  CGG.] 


APrLICATIOX    OF    EL'LE    IN    SHELLEY  S    CASE. 


903 


iipplicable  both  to  wills  and  to  deeds;  but  some  of  them  are 
applicable  to  wills  alone. 

In  some  of  the  states  the  rule  still  exists  as  a  rule  of  the  law 
of  real  property.  This  is  the  case  in  the  District  of  Columbia,* 
Illinois,-  Indiana,' lowa,^  Maryland,^  Pennsylvania,'^  South  Car- 


1  But  in  this  jurisdiction  the  Su- 
preme Court  of  tlie  United  States 
has  held  that  the  rule  in  Shelley's 
case  must  yield  to  the  clear  and 
plain  intent  of  the  testator  expressed 
to  the  contrary.  De  Vaughn  v. 
Hutchinson,  17  S.  Ct.  4G1,  166  U.  S. 
5G6, 570;  De  Vaughan  v.  De  Vaughan, 
S  App.  C.  50;  Sims  v.  College,  1  App. 
D.  C.  72. 

^  Baker  v.  Scott,  63  111.  86;  Brislain 
V.  AVilson,  63  III.  173,  175;  Beacroft 
V.  Strawn,  67  111.  28;  Butler  v.  Heustis, 
68  111.  594;  Belslay  v.  Engel,  107  III. 
182;  Vangieson  v.  Henderson,  150  111. 
119.  36  X.  E.  R.  974;  Hagemann  v. 
Hagemann,  21  N.  E.  R.  814,  129  111. 
164.  In  this  state  the  rule  in  Shelley's 
case  has  been  applied  to  a  devise  to 
A.  and  his  heirs,  subject  to  a  power 
of  sale  to  be  exercised  by  A.  for  his 
support  (Ryan  v.  Allen,  120  111.  648, 
12  X.  E.  R.  65);  to  A.  and  B.  in  fee, 
to  be  equally  di%'ided  on  the  deatlx 
of  either  without  issue  (Silas  v.  Hop- 
kinson.  41  N.  E.  R.  1013,  158  111.  380), 
and  also  to  a  man  and  his  heirs,  and, 
on  his  death  without  heii's  of  his 
body,  then  over  to  aiiotlier.  Ewing 
V.  Barnes,  150  111.  61,  40  N.  E.  R.  325. 
An  expreas  declaration  of  the  tes- 
tator showing  an  intention  to  the 
contrary  does  not  restrict  tlie  api)li- 
cation  of  the  rule.  Van  Olinda  v. 
Carr>enter,  127  IlL  42, 19  N.  E.  R.  808. 

'Small  V.  llowland,  14  Ind.  592; 
Hull  V,  Beals,  25  Iiid.  25;  Andrews 
V.  Spurlin,  35  Itid.  202.204;  Stilwell 
V.  Kuopper,  09  liid.  558,  I  Am.  Pro. 
R  211;  PerkinH  v.  Mc-Coiinell,  130 
Ind.  3M.  .30  N.  E.  R.  121;  Mcllhinny 
V.  Mrllhiniiy,  137  IikI.  411;  Lane  v. 
i;t/.  (Iiirl.,  1H97),  29  N.  K.  R  772.  The 
rule  is  in  force  an  law  iu  tliiH  «tule, 


though  it  will  not  be  allowed  to 
overcome  the  intention  of  the  tes- 
tator clearly  expressed.  Ridgeway 
V.  Lanphear,  99  Ind.  251.  255:  Allen 
V.  Craft,  109  Ind.  476,  479,  9  N.  E.  R. 
919;  Earnhardt  v.  Earnhardt.  127  Ind. 
397,  398,  20  N.  E.  R.  895.  Where  a 
remainder  is  given  on  the  death  of 
the  life  tenant  without  heirs  of  the 
body  (Granger  v.  Granger  (Ind., 
1890),  44  N.  E.  R.  189),  or  where  the 
testator  expressly  provides  that  the 
property  shall  go  to  such  persons  as 
w-ould  have  taken  the  same  had  tlie 
life  tenant  owned  it  in  fee  simple, 
but  that  the  devise  shall  only  vest  in 
him  a  life  estate  and  notliing  more, 
the  rule  does  not  apply.  Earnhardt 
V.  Earnhardt,  20  N.  E.  R.  895, 127  Ind. 
397,  398. 

*  Kiene  v.  Gmehle,  85  Iowa,  313,316, 
52  N.  W.  R.  233;  Pierson  v.  Lane,  14 
N.  W.  R.  90,  60  Iowa,  60.  Subject  to 
an  expression  of  a  contrary  intention 
on  the  part  of  tlie  testator.  Kiene  v. 
Gmelde,  85  Iowa,  87.  89;  Hambel  v. 
Hambel,  75  N.  W.  R.  673  (Iowa,  1898); 
Zavitz  v.  Preston,  96  Iowa.  52,  64  N, 
W.  R,  608;  Wescott  v.  Binford,  74 
N.  W.  R  18. 

s\Varo  V.  Richardson,  3  Md.  505; 
Griflith  v.  Plummer,  33  Md.  74; 
Thomas  v.  Higgins,  47  Md.  439.  In 
this  state  it  has  been  expresslj'  held 
that  the  rule  applies  to  leaseliold 
property.  Home  v.  Lyeth,  4  H.  &  J. 
(Md.)431;  Seeger  v,  Leakin,  70  Md. 
500,25  All.  R.  802;  Hughes  v.  Nick- 
las,  17  Atl.  K.  3!ts.  79  Md.  4s|. 

M''iiidhiy  v.  Rid. Ik-.  3  Biiin.  (Pa.) 
l:i9,  159  et  s»'<i.-.  Eliot  v.  P«'ars()II.  8 
W.  c"t  S.  (I'a.)  3H. :{'.);  ( iuthrie's  Appeal, 
37  I'a.  St.  9.  21;  Atunan  v.  Auman,21 
Pa.  St,  343,  347;  Baasett  v.  Hawk,  118 


90J: 


LAW    OF    "NVII.T.S. 


[§  or,: 


olina/  Texas-  and  Vermont,'  where  the  rule  in  Shelley's  case 
is  recognized  as  a  ]xirt  of  the  law  of  real  ]iro|)(Ttv. 

§  G(i7.  Statutes  alMdisliing  tlie  rule  in  Shelley's  ease  in 
tlio  United  States. —  In  the  majority  of  tlic  American  com- 
monwealths the  rule  in  Slielley's  case  lias  been  expressly  re- 


Pa.  St.  94.  11  Atl.  R,  80-2;  Little  v. 
"VVilcux.  119  Pa.  St.  439;  In  re  r)t)rney*s 
Estate,  20  Atl.  R.  645.  V.M)  Pa.  St.  142. 
26  W.  N.  C.  44.1:  Yarnall's  Appeal, 
70  Pa.  St.  3o5;  Hiester  v.  Yer^^er.  31 
Atl.  R.  122, 166  Pa.  St.  445;  Sheely  v. 
Neidiiammer,  182  Pa.  St.  163,  167,  37 
Atl.  R.  939.  It  has  been  held  in  Penn- 
sylvania that  the  rule  in  Slielley's 
case  may  yield  to  the  intention  of 
the  testator.  Gerhardfs  Estate,  160 
Pa,  St.  253,  28  Atl.  R.  684;  Little's 
Appeal,  117  Pa.  St.  14,  11  Atl.  R.  520. 
And  also  that  where  the  testator 
gives  a  life  estate  to  the  parent,  with 
a  remainder  to  the  children,  and 
there  are  no  children  living  at  the 
date  of  the  death  of  the  testator,  the 
rule  does  not  api)ly.  Pierce  v.  Hub- 
bard, 25  Atl.  R.  231,  152  Pa.  St.  18,  81 
W.  N."  C.  185.  Nor  does  the  rule 
apply  in  Pennsylvania  where  the 
devise  is  to  A.  for  his  life,  witli  a 
power  of  appointment  by  will  or 
deed  amongst  his  sons,  and  a  re- 
mainder in  default  of  appointment 
to  "the  sons  and  daughters  of  A. 
and  to  their  heirs  and  assigns  for- 
ever." The  sons  and  daughters  takei 
as  purchasers.  McDonald  v.  Dunbar, 
88  Pa.  St.  553. 

1  Corrigan  v.  Drake,  15  S.  E.  R.  359, 
36  S.  C.  354:  Gadsden  v.  Desportes, 
39  S.  C.  131,  17  S.  E.  R.  706;  Dott  v. 
Cunnington,  1  Baj'CS.  C),  453;  Simms 
V.  Buist  (S.  C,  1898).  30  S.  E.  R.  400; 
Carr  v.  Porter,  1  McCord,  Ch.  (S.  C.)  60. 

-  Hawkins  v.  Lee,  22  Tex.  54.5. 

3  The  rule  is  subject  in  Vermont  to 
an  expression  of  contrary  intention 
on  the  part  of  the  testator.  Blake  v. 
Sloane,  27  Vt.  475, 476;  Smith  v.  Hast- 
ings, 29  Vt.  240,  242.  See  also  Ford 
V.  Flint,  40  Vt.  382;  In  re  Kelso,  69 


Vt.  272.  274.  37  Atl.  R.  747;   In  re 
Wells  (Vt.,  1897).  38  Atl.  R.  S3. 

"This  (question  seems  to  involve  to 
some  extent  tiie  rule  in  Slielley's  Case, 
1  Coke,  93.  Tiiis  question  was  some- 
what examined  in  a  late  case,  Blake 
V.  Stone.  27  Vt.  475.  It  was  there  con- 
sidered that  the  rule  in  Shelley's  case 
was  to  be  regarded  as  of  no  special 
force  in  this  state,  except  as  one  of 
construction  and  intention.  This  was 
the  view  taken  of  the  same  rule  in 
England  by  Lord  ^lansfield  and  .Tus- 
tice  Wilmot  in  Doe  v.  Laming,  2  Bur- 
rows, 1100,  and  by  Justice  Blac'kst(tne 
in  Blake  v.  Perrin,  4  Burrows.  2579. 
This  is  that  celebrated  case  so  long 
pending  in  the  king's  bench  and  ex- 
chequer chamber  upon  the  extent  of 
the  rule  in  Shelley's  case,  that  when 
the  ancestor  by  any  conveyance  takes 
an  estate  for  life,  with  remainrler 
mediately  or  immediately  to  his  heirs, 
in  fee  or  in  tail,  the  estate  shall  vest 
absolutely  in  the  first  grantee  or 
devisee,  and  no  estate  remain  which 
is  secured  by  the  deed  to  the  heirs: 
in  other  words,  the  term  '  heirs "  in 
such  case  is  to  be  regarded  as  one  of 
limitation,  and  not  of  purchase.  The 
court  here  were  so  divided  tiiat  the 
case  was  not  decided.  And  the 
amount  of  discussion  and  acrimoni- 
ous controversy  which  ensued  upon 
the  subject  is  almost  incredible.  And 
Lord  Campbell  saj's  in  his  Life  of 
Lord  Mansfield  that  even  to  this  day 
nothing  will  so  readily  i)rovoke  de- 
bate among  English  lawyers  as  to 
start  the  query  whether  Perrin  v. 
Blake  was  rightly  decided  by  the 
king's  bench.  But  it  seems  to  liave 
been  held  in  England  that  when  the 
language  of  the   instrument   mani- 


§  OCT.] 


APPLICATION    OF    RULE    IN    SHELLEY  S    CASE. 


905 


pealed  by  statute.  Such  is  the  case  in  Alabama,^  California,^ 
Connecticut,*  Dakota,^  Delaware,^  Georgia,®  Kansas,^  Kentucky,^ 
Montana,^  Maine,'"  Massachusetts,'^  Michigan,'-  ]\rississippi,'* 
Missouri,"  Minnesota,''  Xew  Hampshire,'®  New  Jersey,'"  Xew 


fested  a  clear  intention  to  have  the 
estate  pass  to  the  heirs,  and  that  the 
ancestor  should  take  only  a  life  es- 
tate, it  should  be  allowed  to  have 
that  operation,  certainh'  where  tliis 
is  unquestionably  so  expressed.  It  is 
indeed  held  in  England  that  all 
doubts  shall  in  such  case  be  solved 
against  such  construction.  But  this 
extreme  rule  of  construction  in  favor 
of  the  absolute  right  of  the  an- 
cestor to  alien  the  property  is  obvi- 
ously a  rule  of  policy  merely,  and  has 
been  supposed  to  derive  its  chief  sup- 
port from  considerations  having  tlieir 
origin  in  the  feudal  tenures  of  the 
realm.  But  here  no  such  considera- 
tions can  have  weight.  And  as  our 
system  of  conveyancing  is  statutory, 
there  is  no  necessity  and  no  reason 
in  adoptmg  anj-  rule  of  construction 
which  will  tend  to  carry  us  one  side 
of  the  true  purpose  and  intention  of 
the  in.strument.  And  this,  says  Pro- 
fessor Greenleaf,  2  Cruise,  381,  '  was 
deemed  by  the  late  lamented  Judge 
Story  to  be  generally  adopted  in  tlie 
United  States,  where  tlie  subject  was 
not  regulated  by  statute.'  See  also 
4  Kent's  Com.  215,  223." 

1  Code  1870,  §  2183.  See  Powell  v. 
Glenn,  21  Ala.  458:  Holt  v.  Pickett 
(Ala.,  189G),  2U  S.  K.  432. 

2  Civ.  Code,  ^g  779,  133.5. 
'Bishop  V.   Selleck,  5  Conn.  300; 

K  S.,  p.  352,  g  2953. 

«Comp.  L,  1887.  g  3301. 

■'Daniel  v.  Whartenby,  17  Wall. 
039. 

«CfMle  1802,  1821.  ^g  2248,  2219, 
2250;  (Jhoico  v.  Marshall,  1  (Ja.  97; 
DudU-y  V.  Mallcrry.  4  (Ja.  52,  04; 
(itHirgia,  C.  &  N.  Ky.  Co.  v.  Arclier, 
13  S.  H  li.  030,  87  r.ii  237;  Wilkcrwjn 
V.  Clark,  80  Ga.  307,  7  S.  E.  K.  319. 


''Repealed  as  to  wills  only.  He- 
vision  of  1808,  ch.  117,  §  52;  Gen.  St. 
72;  Bunting  v.  Speek,  41  Kan.  424, 
425. 

8R.  S.,  ch.  80,  §  10;  Feltman  v. 
Butts,  8  Bush,  115;  Riggins  v.  Mc- 
Clellan,  28  Mo.  23:  Montgomery  v. 
Montgomery  (Ky.),  11  S.  W.  R.  506. 

9  As  to  Avi'lls  only.  Comp.  St.  1887^ 
§  492.  p.  889. 

10  R.  S..  ch.  73,  §  0;  Pratt  v.  Lead- 
better,  38  Me.  9;  Buck  v.  Paine,  75- 
Me.  582,  589;  Hamilton  v.  Went- 
worth,  58  Me.  101. 

u  Davis  v.  Hayden,  9  Mass.  514; 
Loring  v.  Elliott,  10  Gray,  568;  Steele 
v.  Cook,  1  Met.  281 ;  Putnam  v.  Glea- 
son,  99  Mass.  454;  Gen.  St.  1800,  p.  466; 
St.  1791,  ch.  60,  §  3;  R.  S.,  ch.  59,  §  9. 

i-Gaukler  v.  Moran,  66  Mich.  353^ 
33  N.  W.  R.  513;  R.  S.,  §  5544,  and 
Comp.  L.  1871.  p.  1327. 

13  As  to  real,  but  not  as  to  personal, 
property.  Code  1880,  §  1291 ;  Powell 
V.  Brandon.  24  Miss.  343,  361;  Hamp- 
ton V.  Ratlier.  30  Miss.  103,  203:  Harris 
V.  ]\IcCann,  23  S.  R.  031,  03  Miss.  98. 

1*  Tesson  v.  Newman,  02  Mo.  198. 

15  Gen.  St.  1891,  g  3985. 

i''As  to  wills  only.  Gen.  Laws,ch.  193, 
1875,  p.  455,  §  5;  Sanborn  v.  Sanboi-n, 
62  N.  H.  631;  Dennett  v.  Dennett,  4a 
N.  H.  500;  Cloutman  v.  Bailey,  62 
N.  H.  44. 

•'  Statute  1821.  Revision,  p.  299,  g  10. 
The  rule  is  al)olisli('d  only  so  far  as 
it  relates  to  lineal  heirs  of  the  dev- 
isee. If  land  is  ilevised  to  A.,  re- 
mainder to  his  hell's,  A.  takes  an 
estate  in  fee  only  if  he  shall  di(>  with- 
out lineal  heirs.  Lippiiicott  v.  Davis 
(N.  J.),  2fS  At  I.  R  587;  Gushing  v. 
Blake.  30  .N.  J.  Ivj.  (5S'.(.  (U»7;  Diui  v. 
lijildwin,  21  N.  J.  L.  395,  I  tO. 


^06 


LAW    OF    WILLS. 


[§§  GG8,  6G8a. 


Yo!-k,^  Xorth  Carolina,-  Ohio,'  Ilhode  Island/  Tonnossec,*  Yir- 
ginia,*^  Washington,'  West  Virginia ^  and  Wisconsin.'-' 

§  6GS.  The  rule  in  Shelley's  case  applied  to  personal  prop- 
erty.—  The  rule  is  as  applicable  to  personal  property  as  it  is 
to  real  property.  If  the  testator  bequeaths  chattels  real,  as 
an  estate  for  years,  to  A,  for  life,  remainder  to  his  heirs  or 
heirs  of  his  bod}'','"  or  personal  property  of  any  description  upon 
similar  limitations,'^  A.  will  take  an  absolute  interest  by  the 
o[)eration  of  the  rule,  whether  the  limitation  in  remainder  was 
to  his  heirs  or  the  heirs  of  his  bod}'-.  The  principle  of  the  rule 
also  applies  where  an  estate  in  a  term  of  years  is  given  to  A, 
for  life  and  to  his  executors.  He  takes  the  full  term  abso- 
lutely for  an  executor  bears  the  same  relation  to  his  testator 
in  respect  to  the  personal  property  as  the  heir  does  to  his  an- 
cestor in  respect  to  real  property. '- 

§  668a.  The  general  ettect  and  the  practical  operation  of 
the  rule  in  Shelley's  ease. —  Where  the  rule  in  Shelley's  case 
is  recognized  to  be  in  force  as  a  part  of  the  law  of  real  prop- 


E.  S.  725.  §  28;  Moore  v.  Littell, 
41  N.  Y.  66;  Clirystie  v.  Phyfe,  19  N. 
Y.  344,  353. 

•^Code,  §  1829;  Bedford  v.  Jenkins, 
96  N.  C.  254.  2  S.  E.  R.  522;  Leathers 
V.  Gray,  101  N.  C.  162,  7  S.  E.  R.  657; 
96  N.  C.  548,  23  S.  E.  R.  455;  Craw- 
ford V.  Wearn,  115  N.  C.  540,  20  S.  E. 
R.  724:  Chaiublee  v.  Broughton,  120 
N.  C.  170,  27  S.  E.  R.  111. 

3R.  S.  1854,  ch.  122,  §  5968;  Carter 
V.  Reddish,  32  Ohio  St.  1;  King  v. 
King,  12  Ohio,  390,  472;  Armstrong 
V.  Zane,  12  Ohio,  287,  299. 

•*Lippitt  V.  Huston,  8  R.  L  415; 
Pub.  St.  R.  L,  ch-  182,  §  2,  in  1798-90; 
Andrews  v.  Lothrop,  17  R.  L  60,  20 
Atl.  R.  97;  Bucklin  v.  Creighton,  18 
R.  L  325,  27  Atl.  R.  221;  Petition  of 
Browning,  16  R.  L  441,  16  AtL  R.  717; 
Boutelle  v.  City  Sav.  Bank,  18  R.  L 
177,  26  AtL  R.  53;  Cooper  v.  Cooper, 
€  R.  I.  261. 

5  Code  1858,  §  2008;  Mill.  &  Bert. 
Code,  §  2514;  Hurst  v.  Wilson,  89 
Tenn.  270,  4  S.  W.  R  778;  Polk  v. 
Faris,  9  Yerg.  (Tenn.)  209,  241. 


«Code,  §  2423;  Roy  v.  Garnett,  3 
Wash.  (Va.)  9;  Moore  v.  Brooks,  12 
Gratt.  (Va.)  135. 

"  As  to  wills  only.  Hill,  Ann.  Code, 
§  1473,  p.  514. 

8  Code  1891,  ch.  71,  §  11. 

9R.  S.,  ch.  95,  §2052. 

10  4  Kent,  223;  Home  v.  Lyeth,  4  H. 
&  J.  (Md.)  431;  Seeger  v.  Leakin,  76 
Md.  500,  25  Atl.  R.  862;  Hughes  v. 
Nicklas,  17  Atl.  R.  398,  70  Md.  484. 

11  Powell  V.  Brandon,  24  Miss.  343, 
361 ;  Hampton  v.  Rather,  30  Miss.  193, 
203;  Kay  v.  Kay,  4  N.  J.  Eq.  495.  502; 
Dott  V.  Cunuington,  1  Bay  (S.  C), 
453;  Polk  v.  Faris,  9  Yerg.  (Tenn.) 
209,  241;  Atkinson  v.  Atkinson,  3  P. 
W.  258;  Fearne,  C.  R.  463;  Daw  v. 
Lord  Chatham,  1  Madd.  488;  Chandos 
V.  Price,  3  Ves.  Jr.  99. 

J^Co.  Lit.  54  B;  Kirkpatrick  v. 
Capel,Sugden  on  Powers,  p.  75;  Hollo- 
way  V.  Clarkson,  2  Hare,  521.  526 
(money  legacy);  Page  v.  Soper,  11 
Hare,  321,  324;  Devall  v.  Dickens,  9 
Jur.  550. 


§  66Sa.]         APPLICATION   OF    KULE    IN    SHELLEY's    CASE.  907 

erty,  those  persons  who,  at  the  death  of  the  tenant  for  life,  are 
Ms  heirs,  take  the  fee  by  descent  from  him,  and  not  as  pur- 
chasers under  the  will  by  which  the  life  interest  is  given.  The 
person  or  persons  who  thus  take  the  fee  as  heirs  by  descent 
take  it  subject  to  the  dower  of  the  widow  of  the  ancestor,  un- 
less she  has  relinquished  her  dower  therein.  And  where  the 
ancestor  was  a  woman,  her  heirs  who  take  by  descent  from  her 
under  the  rule  in  Shelley's  case  take  subject  to  her  husband's 
right  of  curtesy.  These  rules  giving  the  widow  her  dower,  and 
the  husband  his  curtesy,  are  applicable  whether  the  estate  in 
the  ancestor  was  legal  or  equitable.^ 

"Where  the  heirs  or  the  heirs  of  the  body  of  the  primary  dev- 
isee take  by  descent  from  their  ancester  under  the  rule,  and 
not  as  purchasers  under  the  will,  and  the  ancestor  dies  in  the 
life-time  of  the  testator,  his  heirs  or  the  heirs  of  his  body  take 
nothing,  though  they  survive  the  testator.  They  cannot,  by 
reason  of  the  rule,  take  as  purchasers  under  the  will  in  which 
an  estate  is  given  their  ancestor,  and  they  cannot  take  by  de- 
scent from  their  ancestor,  as,  independently  of  statute,  the 
devise  to  their  ancestor  has  lapsed  by  his  death  before  that 
of  the  testator  has  taken  place.^  But  where  the  rule  in  Shel- 
ley's case  has  been  abolished,  the  death  of  the  ancestor  to 
whom  the  life  estate,  remainder  to  his  heirs,  has  been  given 
does  not  affect  the  interest  which  his  heirs  will  take  if  they 
survive  the  testator.  When  the  ancestor  survives  the  testator, 
the  remainder  to  his  heirs  is  contingent  until  his  death;  but 
when  the  ancestor  dies  in  the  life-time  of  the  testator,  the  re- 
mainder to  them  is  accelerated,  and  becomes  a  vested  interest 
in  those  of  his  heirs  who  survive  the  testator,  and  they  take  as 
purchasers  an  immediate  estate  under  the  will.  Again,  in  those 
jurisdictions  where  the  rule  in  Shelley's  case  is  recognized  as 
law,  and  where,  by  its  operation,  the  primary  devisee  takes  tlie 
fee,  he  has  the  absolute  power  of  alienating  it  by  sale,  mort- 
gage or  otherwise.  Ilis  heirs,  taking  by  descent  and  not  by 
purcliase,  are  estopped  to  assert  their  rights  as  against  his  con- 
veyance of  the  fee ;  or  rather,  as  netno  est  hains  vivcntU-,  thoy 
have  no  rights  until  his  death;  and,  if  he  is  then  not  in  posses- 
sion of  the  fee  simple,  there  is  nothing  t(j  which  their  rights  as 

1  Post,  8  714.  2  Ante,  §  324  et  soq. 


90S  LAAv  OF  T\-ii.i.s.  [§  GCSa. 

heirs  taking  by  dcscc.Tit  can  attach;  Tvhile  on  the  other  liand. 
if  tho  heirs  take  a  remaincU'r  in  foe  as  purchasers  aftei"  a  life 
estate  in  the  ancestor,  no  act  of  tlie  latter  can  affect  the  heirs, 
except  so  far  as  a  forfeiture  of  the  life  estate  would  at  common 
law,  independently  of  the  statute,  destroy  the  contingent  re- 
mainder. As  regards  the  effect  of  the  rules  upon  estates  tail, 
it  need  only  be  said  here  that,  where  by  its  operation  the  first 
taker  is  created  a  tenant  in  fee  tail,  he  may,  independently  of 
statute,  alien  the  fee  tail  by  suffering  a  common  recovery, 
which  will  bar  the  heirs  of  his  body,  and  will  destroy  all  con- 
tincjent  remainders  limited  after  the  estate  taiL 


CHAPTER  XXXIT. 

THE  WORD  "  ISSUE "  AS  A  TERM  OF  PURCHASE  AND  OF  LIM- 
ITATION. 


6G9.  "Whether  the  word  "issue"  is 
a  word  of  limitation  or  a 
word  of  purchase. 

670.  A  devise  to  "  A.  and  his  issue" 
creates  an  estate  tail 

C71.  The  effect  of  added  words  of 
inheritance  in  modifj-ing  a 
gift  of  a  remainder  to  issue. 

672.  The  addition  of  words  of  dis- 

tribution to  a  devise  to 
issue  —  Issue  may  take  as 
tenants  in  common. 

673.  A  devise  to  "  A.  for  life,  and 

then  to  his  issue,"  converted 


into  a  fee  tail  by  the  rule  in 
Shelley's  casa 

674.  Definition  and  construction  of 

the  word  "  issue  "  when  it  is 
a  word  of  purchase. 

675.  The  restriction  of  the  word 

"  issue  "  to  children  as  pur- 
chasers. 

676.  Mode  of  distribution  among 

issue  as  purchasers. 

677.  ]\Ieaning   of    the   word   "de- 

scendant." 

678.  Mode  of  distribution  among 

descendants. 


§  669.  Whether  the  word  ^^  issue  "  is  a  word  of  limitation 
or  a  word  of  purchase. —  The  character  of  the  word  "issue," 
whether  it  shall  be  regarded  as  a  word  of  limitation,  describ- 
ing the  quantity  of  an  estate  which  is  given,  or  whether  it 
shall  be  taken  as  a  word  of  purchase,  creating  independent 
interests  under  the  will,  has  been  the  subject  of  much  discus- 
sion. In  a  case  decided  by  him  Lord  Kenyon  •  said :  "  In  a 
will,  'issue'  is  either  a  word  of  purchase  or  of  limitation,  as 
will  Ijost  suit  the  intention  of  the  devisor;  though  in  the  case 
of  a  deed,  it  is  universall}'  a  word  of  purchase." 

Though  some  of  the  cases  state  that  primarily  the  word 
'•  issue "  signifies  "  heirs  of  the  Ijodij^''  an<l  is  consequently  a 
word  of  limitation,  it  does  not  seem  that  tiiorc  is  any  pre- 
suinj)tion  one  way  or  the  other.  For  example,  if  a  man  de- 
vises land  for  life  to  A.,  vuth  a  7'cmainder  to  his  issue,  there  is 
nothing  to  show,  admitting  tliat  "issue  "  is  oquivahmt  to  tho 
words  "iK-'irs  of  tlie  body,"  that  tlie  ti'stator  intends  lli(«  issue 
<»r  A.  to  take  by  descent  from  the  ancestor,  I'allier  than  as  pur- 
cliasers  under  his  will.      l!ut  if  the  testator  devisetl  /<(/(d  to  A. 


»  III  l)o.3  d.  Co<)|).T  V.  Collis,  t  T.  It  21)1,  21)1). 


910  LAW  OF  wiir.s.  [§  670. 

and  his  issue,  it  is  a  very  fair  presumption  that  by  "issue"  ho 
meant  ''heirs  of  the  body,"  and  that  those  who  are  to  take  as 
issue,  are  to  take  by  descent  from  the  ancestor  mentioned.  The 
testator  did  not  in  such  event  mean  that  the  ancestor  was  to 
take  a  life  estate,  and  that  on  his  death  the  interest  in  the  fee 
was  to  go  to  the  issue,  i.  e.,  to  descendants  of  all  degrees  of 
rehitionship,  but  that  the  ancestor  was  to  take  an  estate  tail,* 
which  on  his  death  was  to  descend  to  the  heirs  of  his  body. 

The  w^ord  "  issue,"  at  least  in  a  will,  is  not  a  technical  word 
like  "heirs  of  the  body; "  and  hence,  if  the  testator  has  indi- 
cated an  intention  to  use  it  in  any  other  sense  than  as  a  word 
of  limitation,  his  intention  must  be  respected.  For  we  should 
bear  in  mind  that  even  such  technical  and  exact  words  as  "heirs," 
or  "  heirs  of  the  body,"  may,  if  shown  by  the  context  to  be  de- 
scriptive of  persons  rather  than  words  of  limitation,  be  taken 
as  woi'ds  of  purchase,  pointing  out  the  persons  whom  the  tes- 
tator intended  to  take  directly  under  his  will.^  But  in  all  such 
cases  the  intention  of  the  testator  to  use  the  words  in  an}' 
other  than  their  ordinary  sense  must  be  shown  from  the  lan- 
guage of  the  will. 

§  G70.  A  devise  to  "  A.  and  his  issue  "  creates  an  estate 
tail. —  A  devise  to  A.  and  his  issue,  simply,  with  nothing  more 
in  the  context  to  show  whether  A.  and  the  issue  are  to  take 
concurrently  or  in  succession,  or  what  interest  the  issue  are  to 
take,  will  undoubtedly  give  A.  an  estate  in  fee  tail.'  The 
word  "issue"  will  be  taken  as  a  word  describing  the  charac- 
ter of  the  estate  which  is  created  in  A.,  and  not  as  descriptive 
of  a  class  of  persons  who  are  to  take  as  purchasers  after  him. 
It  will  not  create  a  life  estate  in  A.,  with  remainder  in  his  de- 
scendants after  his  death,  but  the  issue,  if  they  ever  acquire 
any  interest  in  the  property,  will  take  solely  by  descent  from 
their  ancestor,  and  not  as  purchasers  under  the  will.* 

1  Ante,  %  644  et  seq.  Angle  v.  Brosius,  43  Pa.  St.  187,  189, 

^Ante,  %  616.  190;  Powell  v.  Mission  Board,  49  Pa. 

3  See,  as  to  estates  tail,  a??fe,  §  644  St.  46,  53,  55;  Findlay  v.  Piddle,  3 

et  seq.  Binn.  (Pa.,  1810),  139,  160;  Arnold  v. 

<Den  V.  Emans,  2-3  N.  J.  L.  9G7,  Brown,   7  R  I.   188,  195;  Daniel  v. 

971;  Gibson  v.  McNeely,  11  Ohio  St.  Whartenby,  17  Wall.  (U.  S.)  639,  645. 

(1860),  131,  139-141;  Paxson  v.   Lef-  A   devise  to  a  daughter   "for  and 

ferts,  3  Rawle  (Pa.,  1831),  59,  75;  Kay  during  the  term  of  her  natural  life, 

V.  Scates,  37  Pa.   St.   (1860),   31,  39;  and  at  her  death  to  the  issue  of  her 


§  670.]     "issue"  as  teem  of  purchase  oe  limitation.        911 

Xor  is  it  material  to  vary  this  construction  whether  A.  shall 
or  shall  not  have  issue  living  at  the  death  of  the  testator,  for 
the  rule  in  Wild's  case^  is  not  applicable  to  a  devise  to  A.  and 
his  issue;  and  in  either  event  he  will  take  the  fee  in  tail.  The 
same  construction  which  applies  to  a  devise  to  A.  and  his  issue 
will  also  apply  to  a  devise  to  several  persons  and  their  issue,^ 
or  to  a  class,  and  to  the  issue  of  the  members  of  the  class,' 
■where  the  testator  has  not  used  express  words  by  which  an  in- 
tention is  clearly  shown  that  the  issue  are  to  take  as  purchasers 
under  the  will.  Thus,  in  England  it  has  been  held  that  a  de- 
vise to  A.  and  his  issue  living  at  his  death  would  give  A.  an 
estate  tail,  though  A.  had  issue  living  at  the  death  of  the  tes- 
tator who  might  have  taken,  as  joint  tenants  with  him,  as  pur- 
chasers;* though  it  is  very  likely  that  in  the  United  States  a 
similar  provision  for  A.  and  his  issue  would  give  him  a  life 
estate  with  a  contingent  remainder  to  his  issue.^ 

body  who  may  then  be  living,"  vests  so  as  to  give  the  ancestor  an  estate 

in  her,  not  a  fee  conditional,  to  be-  tail,  unless  there  are  expi-essions  in 

come  absolute  on  the  birth  of  issue,  the  will  unequivocally  indicative  of 

but  an  estate  for  life,  remainder  to  a  contrary  intention.  It  may  be  that 

the  issue  of  her  body  living  at  the  less  is  required  to  overcome  the  pri- 

time  of  her  death.     Gadsden  v.  Des-  mary  meaning  of  the  word  "issue* 

portes,  17  S.  E.  R.  706,  39  S.  C.  131.  when  used  in  a  will  than  would  be 

1  See  ante,  §579.  necessary  to  destroy  the  force  of  the 

2 Beaver  v.  Nowell,  25  Beav.  551;  technical  words 'heirs  of  the  bodj'; ' 

Parkin  v.  Knight.  15  Sim.  83.  but    it    cannot  be    regarded    as    a 

3  Campbell  v.  Bouskell,  27  Beav.  word  of  purchase  unless  the  context 

325.     On  the  creation  of  estates  tail  clearly  shows  tliat  the  testator  in- 

Yjy  informal  language,  see  ante,  ^  GIG.  tended  to  use  it  in  the  abnox'mal  and 

*  University  of  Oxford  v.  Cliiton,  1  restricted  sense    of    children,   sons, 

Eden,  473;  Letiiieller  v.  Tracy,  3  Atk.  daughters,  etc.    .    .    .     What,  then, 

774,  7H4,  79G.  is  the  elTect  of  the  added  words  "or 

"'  "The  word  'issue'  is  well  adapted  heirs  '  in  the  devise  of  the  remainder? 

frir    a   word    of  limitation,    liaving  Certainly  not  to  weaken  the  force  of 

much  more  aptitude  for  such  a  use  the  words  '  legal  issue,'  and  to  show 

than  it  has  to  designate  the  objects  tliat  the  testatrix  intended  by  them, 

of  a   gift.     In   signification   it  very  not  limitation,  but  personal  descrip- 

ne.'irly  resembles  the  tecliiiical  j)liras<',  tioii.     Whatever  may  betheir  mean- 

'  heirs  of  the  body; '  and,  indeed,  the  ing,  it   is   manliest  that  the   added 

two  wen;  used  as  S3'rionymous  in  tiie  words  are  not  restrictive.     They  are 

nXiiiuUi  ilr  ilontH.     Hence  it  has  long  strictly  words  of  limitation.     They 

IxK-n  settled  that  when   real  estate  point  to  no  jiersons.     They  express 

IH   <levis<!d   by  one   or   more   limita-  only  tlie  character  in  which  the  ro- 

tiotiH  in   the   wime  will  to  a  jn^rson  mainder-men  are  to  take,  and  tli(>v 

and  hiH  iKsue,  the  won!  '  issue '  will  are   the  only  w«)rds  which  the  testa- 

bc  conHtrued  U.S  u  word  of  limitation,  tri..  has  used  explanatory  of  the  do- 


<)12  LAW    OF    WILLS.  [§  G71. 

^671.  The  oflfoct  of  added  words  of  inherittincc  in  modi- 
fyiiiir  a  ixift  of  a  reinaiiidor  to  issue. —  yrequontly  the  word 
*'  issue  "  is  a  word  ol"  limitation  and  is  synonymous  with  "heirs 
of  the  body,"  creating  an  estate  in  the  ancestor  in  fee  tail. 
Though  this  is  its  ordinary  meaning  which  will  attract  tlio 
operation  of  the  rule  in  Shelley's  case,'  yet  the  word  occur- 
ring in  a  devise  of  a  remainder  may  be  taken  as  a  term  of 
])urehase  and  not  of  limitation,  if  such  is  the  intention  of  the 
testator.-  The  fact  that  after  a  devise  to  A.  for  life,  and  on 
his  death  to  his  issue,  the  fee  is  devised  to  the  heirs  male  of  the 
issue,  does  not  prevent  A.  from  taking  an  estate  tail." 

"Whether  a  limitation  to  the  "  heirs  general,'^  or  to  the  "  hei?'s 
<ind  assigns'"  of  the  issue,  will  convert  "issue"  into  a  term  of 
purchase,  has  been  much  debated.  A  limitation  to  heirs  gen- 
eral "will  not  have  that  effect  after  a  limitation  of  a  remainder 
to  the  heirs  of  the  body,"*  and  the  words  will  be  rejected  as 
rejuignant.  In  an  early  case  where  the  language  of  the  will 
was  to  A.  for  life,  "  then  to  his  issue  male  and  his  heirs  for- 
ever,''^ with  a  devise  over  in  default  of  issue,  the  court  held 
that  A.  took  an  estate  for  life,  with  a  contingent  remainder  to 
his  issue.'^  And  this  rule  has  been  followed  in  many  American 
cases,  with  the  effect  of  preventing  the  application  of  the  rule 
in  Shelley's  case,  and  of  giving  the  fee  in  remainder  to  the 
issue  as  purchasers.^ 

But  there  are  one  or  tAvo  English  cases  in  which  the  devise 
to  the  heirs  general  of  the  issue  has  been  rejected  as  repugnant 
and  void,  and  the  court,  taking  it  for  granted  that  the  word 
*'  issue  "  is  a  word  of  limitation,  has  applied  the  rule  in  Shel- 
ley's case,  thus  creating  in  the  ancestor  an  estate  tail.     Tlius, 

vise  to  the  legal  issue."    Remarks  of  ^  Loddington  v.  Kinne,  1  Salkeld, 

Strong.  J.,  in  Angle  v.  Brosius,  43  Pa.  224,  Ld.  Raym.  203. 

St.  187, 189.  « Tongue  v.   Nutwell,   13  Md.  415 

^Ante,  %  561.  (185S);  Chelton  v.  Henderson,  9  Gill 

2  Powell  V.  Board  of  Missions,  49  Pa.  (Md.,  1850),  432;  Simpers  v.  Simpers, 

St.  (1865 1,  46,  53,  15  Md.  100, 190, 191 ;  Shreve  v.  Shreve, 

sRoe  d.  Dodson  v.  Grew,  2  Wils.  43  Md.  382;  Robbins  v.  Quinliven,  79 

322,  Wilmot,  272;  Hodgson  v.  Merest,  Pa.  St.  333;  Findiay  v.  Riddle,  3  Binn. 

9  Price,  556,  where  the  remainder  (Pa.,  1809),  139,  160:  Way  v.  Gest,  14 

was  given  "  to  the  issue,  and  the  heirs  S.   &   R.   (Pa.,   1725),   40;    Daniel  v. 

of  the  body  of  issue."  Whartenby,  17  Wall.  (U.  S.)  639,  645. 

■•  See  as  to  the  effect  of  words  of  See  also  ante,  §§  659,  660. 
limitation  on  heirs  of  the  body,  g  652. 


§  672.]     "issue"  as  term  of  purchase  or  limitation,        913 

in  a  case  where  the  testator  gave  hind  to  A.  for  life,  and  after 
the  determination  of  that  interest  to  the  hsue  male  of  Ah  hody 
lawfully  to  be  begotten,  and  to  their  heirs,  and  for  want  of  issue 
then  over,  the  court  held  that  A.  took  an  estate  in  fee  tail 
under  the  rule  in  Shelley's  case.  In  coming  to  this  conclusion 
the  court  relied  upon  the  word  '■'•  their ''^  as  pointing  out  that 
the  testator  did  not  mean  that  the  heirs  of  an\^  particular  per- 
son were  to  take,  as  would  have  been  the  case  had  the  remainder 
been  to  issue  and  to  ///*  heirs.  In  the  latter  case,  in  giving  a 
remainder  to  the  issue  of  the  testator  and  to  his  (the  issue's) 
heirs,  the  testator  may  have  meant  to  indicate  the  eldest  son 
or  daughter,  or  some  other  particular  person  who,  being  then 
in  his  mind,  was  to  take  as  a  purchaser,  \iQ\xi^  jpersona  desig- 
nata} 

§  672.  The  addition  of  words  of  distribution  to  a  devise  to 
issue  —  Issue  ni.iy  take  as  tenants  in  common. —  In  all  cases 
where  the  word  "  issue  "  has  been  held  to  be  a  word  of  limita- 
tion and  not  a  word  of  purchase,  it  has  been  reasonable  to  as- 
sume, and  the  court  has  assumed  from  the  language  of  the  Avill, 
that  the  testator  intended  the  issue  of  the  person  mentioned  to 
take  by  descent,  according  to  tJie  canons  of  descent  which  are  rec- 
ognized Jjy  the  common  law.  At  the  common  law  the  eldest  of 
the  issue  male  most  nearly  related  to  the  ancestor  would  take 
the  fee  upon  the  death  of  the  latter.  Hence,  where  tlie  testator 
points  out  a  mode  of  distribution  among  the  issue  which  is  ab- 
solutely contrary  to  and  inconsistent  with  the  rules  of  descent 
regulating  estates  in  fee  tail  at  the  common  law,  he  must  be 
presumed  to  intend  that  the  issue  shall  not  take  hy  descent,  or 
the  words  of  distribution  will  have  to  be  rejected.  The  testa- 
tor may  use  the  word  "  issue  "  either  as  a  word  of  limitation  or 
as  a  word  of  purchase;  but  he  cannot,  while  using  it  as  a  word 
of  limitation,  so  that  the  issue  will  take  by  descent,  create  new 
rules  of  descent  contrary  to  those  of  the  common  law. 

The  addition  of  words  calling  for  a  distriluition  among  issue 
in  the  case  of  a  devise  U>  them  is  of  t'(|uiv(Hal  Illl•atlin<,^^  And 
it  must  b(!  noticed,  as  alTcctin;,'  tin;  ])rincipl('S  of  construction 
just  e-\j)lain<'d,  that  "  issue,"  unlike  "  heirs  <»f  th(>  liody,"  is  not 
ay  en  jjrimafa/jie  ii  tecluiicai  woid  of  liniitalinii.      it  is  an  ordi- 

»King  V.  Burchell,  1  EJcn,  421,  .\ri»l).  :!7'J.        '^Antv,  ^  05L 
58 


914  LAW    OF    WILLS.  [§  G72. 

nary  word,  and  hence  it  is  liable  to  be  diverted  from  its  sense 
as  a  word  of  limitation  by  a  context  which  would  have  no  ef- 
fect at  all  in  that  respect  upon  the  words  "  heirs  of  the  body." 
The  Enoflish  cases  in  which  the  word  "  issue  "  has  been  construed 
are  inharmonious  upon  this  particular  point.  In  some  of  the 
English  cases  where  the  devise  was  expressly  to  A.  for  life, 
"with  remainder  to  his  issue  after  his  death,  and  to  their  heirs 
as  tenants  in  common^  or  where  a  remainder  was  to  go  to  issue 
of  A.,  to  be  equally  divided  among  t/w/n,  or  share  and  share  alike 
as  tenants  in  common^  the  word  "  issue  "  was,  by  the  effect  of  this 
context,  construed  to  be  a  word  of  purchase,  and  in  consequence 
the  court  refused  to  apply  the  rule  in  Shelley's  case.^ 

This  construction  is  of  course  materially  strengthened  where 
the  words  directing  a  distribution  among  the  issue  are  coupled 
with  words  of  limitation  sufficient  to  carry  the  fee  to  them,  as 
to  the  "heirs  and  assigns"  of  the  issue,  and  also  by  the  fact 
that  there  is  no  gift  over  on  a  failure  of  issue.*  The  conferring 
of  a  power  of  appointment  to  be  exercised  by  the  tenant  for 
life  in  favor  of  the  issue  of  himself  is  a  very  material  indica- 
tion that  the  testator  intended  the  issue  to  take  as  purchasers 
under  his  will  in  case  the  life  tenant  does  not  exercise  the 
power  of  appointment.  Thus,  according  to  the  English  cases, 
it  may  be  stated  as  a  general  rule  of  construction  as  regards 
devises  in  remainder  to  issue  that  a  devise  to  one  for  life,  with 
a  remainder  to  his  issue  and  their  heirs  in  such  shares  and  pro- 
portions as  the  life  tenant  shall  by  deed  or  will  appoint,  and  if 
the  life  tenant  should  not  marry  and  have  issue,  or  if  he  should 
not  have  issue  who  shall  attain  full  age,  then  over,  gives  the 
issue  the  fee  simple  in  remainder  as  tenants  in  common.  The 
rule  in  Shelley's  case  does  not  apply.  The  parent  does  not  take 
an  estate  tail.^ 

The  power  in  the  parent  to  appoint  among  the  issue  raises 

1  Slater  v.  Dangerfield,  16  Mee.  &  *  See  remarks  of  Langdale,  J.,  in 
Wei.  263.  273.  Greenwood  v.  Rothwell,  6  Beav.  492. 

2  HuUer  v.  Ironmonger,  2  East,  383;  &  Lees  v.  Mosley,  1  Y.  &  C.  589.  To 
Greenwood  v.  Rothwell,  5  ]iL  &  G.  the  same  effect  is  Hockley  v.  Maw- 
638,  6  Beav.  492.  bey,  1  Ves.  Jr.  143,  loO;  Crozier  v. 

3  See  ante,  %  Gol,  as  to  the  effect  of  Crozier.  3  Drewry  &  War.  373,  where 
words  directing  an  equality  of  divis-  the  devise  was  in  remainder  to  issue, 
ion  among  heirs  of  the  body.  to  be  divided  among  them  as  the  life 

tenant  should  appoint. 


§  672.] 


ISSUE       AS    TERM    OF    PURCHASE    OR    LIMITATION, 


915 


by  implication  an  interest  in  them  as  beneficiaries  in  default  of 
the  execution  of  the  power.  For  this  power  is  both  special 
and  imperative,  and  a  neglect  to  exercise  it,  or  an  exercise  of 
it  outside  of  the  limits  of  the  class  which  has  been  pointed 
out  by  the  testator,  will  be  corrected  by  a  court  of  equity.  If 
the  appointor  shall  exercise  the  power,  his  issue  then  take 
under  the  original  instrument  creating  the  power;  while,  if  he 
shall  fail  to  exercise  the  power,  the  issue  still  take  under  the 
original  will  in  default  of  a  valid  appointment  to  them  by  their 
ancestor.^ 


1  In  the  case  of  Lees  v.  !Mosley,  1  Y. 
&  C.  589,  the  court,  after  distinguish- 
ing between  the  words  "  heirs  of  the 
body,"  which  are  2:»'ima  facie  tech- 
nical words  of  limitation,  and  "is- 
sue." which  is  a  non-technical  word, 
stated  that  the  word  "  issue "  was 
used  in  the  statute  dedonis  as  ajnony- 
ino\i.<  witli  children  and  descendants 
of  every  degree,  and  further  said  as 
follows:  "The  testator  begins  by  de- 
vLsing  an  express  estate  for  life  to  his 
son.  He  then  devises  a  remainder  to 
his  (the  son's)  lawful  issue.  If  he 
stopped  there,  it  would  be  an  estate 
tail  in  the  son.  For  tlie  word  'issue ' 
might  include  ail  descendants,  and, 
all  being  unborn,  no  assignal)le  rea- 
son could  exist  for  distinguishing  be- 
tween any  of  them.  And  then  tlie 
rule  in  Slielley's  case  would  ai)ply, 
and  would  convert  tiie  estate  for  life 
previously  given  into  an  estate  tail. 
But  the  testator  then  adds,  'and 
their  respective  heirs  in  such  shares 
as  he,  tlui  said  son,  shall  by  irill  or 
dteed  aj>p<>int.''  Now,  according  to 
Iloc-kley  v.  MawJjey,  1  W-s.  Jr.  14:J, 
IW,  tlie  eir<;(t  of  this  clause  would 
bo  to  give  th<;  objects  of  tliu  jviwcjr 
an  interest  in  an  equal  distrilnitivo 
share,  in  case  the  |Knvcr  was  nf>t 
executed.  Tin;  clauw.  tln-n-forc,  is 
equivalent  to  a  declaniti(»ii  by  tln^ 
teHtator  that  the  Ikhuo  and  their 
reH{Kji;tive  heirs  Hhall  take  equal 
atiarcH,  but  that  the  son  should  havo 


a'power  of  distributing  amongst  them 
the  estate  in  unequal  shares  if  he 
thought  tit.  Now,  if '  issue '  be  taken 
as  a  word  of  limitation,  the  word 
'heirs'  would  be  first  restrained  to 
heirs  of  the  body,  and  tlien  alto- 
gether rejected  as  luinecessary.  The 
word '  respective '  would  have  no  par- 
ticular meaning  annexed  to  it;  and 
tlie  apparent  intention  of  the  testa- 
tor to  give  his  son,  and  afterwards 
to  distribute  his  property  in  shares 
among  his  issue,  would  be  frustrated. 
On  the  other  hand,  if '  issue '  be  taken 
as  a  word  of  purchase,  designating 
either  the  immediate  issue  or  those 
living  at  the  death  of  the  son,  the 
ajjparent  intention  will  be  effectu- 
ated, and  all  these  words  will  be 
given  their  peculiar  and  ordinary  ac- 
ceptation. If  then  the  will  stopped 
here  it  would  seem  clear  that  the 
court  ouglit  to  read  '  Lssue '  as  a  word 
of  purchase.  Then  comes  the  devise 
over.  .  .  .  Now  the  effect  of  such  a 
clause,  if  superadded  to  a  remainder 
to  children,  would  be  to  show  an  in- 
tention to  give  a  fee  to  the  cliiMreu 
on  their  attaining  the  age  of  twenty- 
one.  And  if  by  the  fornu^r  j)art  of 
the  will  the  same  estat<!  has  been 
given,  it  does  not  appear  to  \mi  sound 
reasoning  to  draw  the  conclusion 
that  sucOi  a  clause  can  convert  an 
estate  [)reviou»ly  given  into  an  etitato 
taiL" 


916  LAW    OF    WILLS.  [§  072. 

And  the  fact  tliat  in  such  cases,  where  a  power  of  appoint- 
ment exists,  there  is  achled  a  limitation  over  upon  an  indefinite 
failure  of  the  issue  of  the  lirst  devisee,  Avill  not  convert  the  de- 
vise into  a  fee  tail  in  him,  where  an  estate  for  life  is  given  him 
in  express  terms,  though  such  a  limitation  over  is  always  a 
circumstance  to  be  considered.  On  the  other  hand,  in  very 
many  cases  the  English  courts  have  refused  to  apply  a  con- 
struction that  rejects  the  rule  in  Shelley's  case  where  words  of 
distribution  are  annexed  to  a  gift  of  a  remainder  to  issue.  Ac- 
cordingly, where  the  gift  was  to  A.  for  his  natural  life,  re- 
mainder "  to  and  amongst "  his  issue;  ^  or  remainder  to  his  issue 
^^ share  and  share  alihe;  "-  or  where  the  testamentary  disposi- 
tion was  to  several  individuals  and  to  their  issue  male  andfe- 
onale  forever,  to  be  equally  divided;'  or  where  the  gift  was  in 
remainder  to  issue  as  tenants  in  common^  loithout  xoords  of  dis- 
tribution; *  or  where  the  devise  was  to  the  issue  of  several  in 
remainder^  and  for  w:ant  of  such  issue  tJien  over;  ^  or  where  the 
devise  was  in  remainder  to  issue,  and  if  more  than  one  equally 
among  tJiem,  but  if  no  issue  of  the  life  tenant  living  at  his  death, 
then  over  to  another,**  the  court  held  that  the  ancestor  took  an 
estate  tail  by  the  operation  of  the  rule  in  Shelley's  case.  And 
though  in  most  of  these  cases  the  circumstance  that  there  was 
a  devise  over  upon  an  indefinite  failure  of  issue  was  regarded 
as  strengthening  the  presumption  that  an  estate  tail  was  meant 
to  be  given,  in  some  this  circumstance  was  wholly  disregarded.'' 

The  rule  that,  independently  of  statute,  a  devise  in  inde- 
terminate language  confers  only  a  life  estate  on  the  devisee 
must  also  be  considered  in  connection  with  a  devise  of  a  re- 
mainder to  issue.  If  the  remainder  was  given  to  issue,  without 
%oords  of  limitation  carrying  tJie  fee  to  them,  the  inference  was 
stronger  that  the  ancestor  was  to  take  an  estate  tail,  and  the 
issue  must  take  from  him,  as  that  would  be  the  only  way  they 
could  ever  take  the  fee.     But  where  the  remainder  in  fee  was 

1  Doe  d.  Blandford  v.  Applin,  4  T.  823,  881,  882:  Harrison  v.  Harrison,  7 
R.  82.  Man.  &  Gr.  9-38. 

2  Heather  v.  Winder,  5  L.  J.  (N.  S.)  »  Woodhouse  v.  Herrick,  1  K.  &  J. 
Ch.  4L  352. 

3  Tate  V.  Clarke,  1  Beav.  100.  «  Cannon  v.Rucastle,  8  Com.  Bench, 
<  Doe  d.  Cook  v.  Cooper,  1  East,  229,    876. 

235;  Croly  v.  Croly,  Batty,  1 ;  Roddy        "  Crozier  v.  Crozier,  3  D.  &  War.  373; 
V.  Fitzgerald,  L.  R.  6  H.  L.  Cases,    Greeu  v.  Rothwell,  5  Man.  &  Gr.  628. 


§  673.]     "issue"  as  tekm  of  pukciiase  or  limitation.        917 

given  to  the  issue,  whether  b}^  technical  words,  as  "  heirs  and 
assigns,"  ^  or  by  a  devise  of  the  "  estate,''''  ^  the  express  gift  of 
the  fee  raised  an  inference  that  the  testator  meant  them  to  take 
as  purchasers  as  against  the  parent,  to  whom  a  life  estate  in 
precise  language  had  been  given.^ 

§  673.  A  devise  to  *^A.  for  life,  and  then  to  his  issue," 
converted  into  a  fee  by  the  rule  iu  Shelley's  case. —  The 
origin  and  character  of  the  rule  in  Shelley's  case  will  be  found 
fully  discussed  in  another  place  in  this  woi'k.*  It  is  necessary 
here  to  consider  the  rule  only  so  far  as  it  may  be  applicable  to 
a  devise  to  a  person  for  life,  and  qfie?'  his  death  to  his  issue,  sim- 
jpliciter,  and  without  words  of  distribution  or  inheritance. 

The  application  of  the  rule,  according  to  the  authorities,  is 
not  prevented  by  the  fact  that  the  "heirs  of  the  body"  are  de- 
scribed by  other  than  technical  and  appropriate  words.^  Its 
application  does  not  depend  either  upon  the  intention  of  the 
testator,  or  upon  the  fact  that  he  has  or  has  not  used  technical 
language.  Hence,  if  from  the  will  it  appears  that  he  has  cre- 
ated a  life  estate,  with  remainder  in  fee  to  the  issue,  and  that 
by  issue  he  meant  "heirs  of  the  body,"  the  rule  in  Shelley's 
case  will  apply.  Such  a  case  should  clearly  be  distinguished 
from  a  devise  to  "yl.  and  his  issv.e,^''  for  in  the  latter  case  no 
life  estate  is  created  in  express  terms,  and  no  necessity  exists 
for  applying  the  rule  in  Shelley's  case,  as  A.  takes  an  estate 
tail.  Tlie  language  of  the  testator  can  have  but  one  meaning 
here,  and  the  i.ssue  take  by  descent,  for  the  word  is  synonymous 
with  "  heirs  of  the  body  of  A."  liut  a  devise  to  A.  for  his  life 
c.i'presslij,  vith  a  rnnaitid^'r  to  his  issue  in  fee,  clearly  expresses 
an  intention  that  the  issue  are  not  to  take  by  limitation,  but 
as  purchasers,  und  tiiev  would  take  as  purchasers,  but  that  the 
rule  in  Shelley's  case  necessitates  tiiat  they  shall  take  by  de- 
scent.* 

ll^-es   V.  Mosl.-y.   1   Y.    &   C.  r,S9;  ^Antc^mX. 

OreenwfKjd  v.  Itotliwell,  ")  Miiri.  &  (Jr.  "Carroll  v.  Hums,  10«  Pa.  St  (IHSr.). 

028.  :W\:  Wilstm  v.  Dciiij?.  l(i(}  I'a.  St.  L'it. 

2  Crozir-r  v.  rn./icr.  :f  I).  &  W.  :J7;J;  :«)  Atl.  R  lOLM;  Kay  v.  Soalt'.s. :{?  I'a. 

Itradley   v.  Cart\vri;,'lit,  h.  R.  'J  C  I'.  St.  :n.:«>;  .James"  K,Htat««.  1  Dull.  (Pa.) 

nil.  47;  Allele  v.  BroHius.  A'.\  I'a.  St.  (IWW). 

'For   otlior   rasi's  illu.-.tralm;;  tin;  1S7,    IMU   (where    tlio   devise  wa«   to 

text,  we /kW,  |5  (J7L  "  lejjal    issue   or   }ieirs");  T'axson   v. 

< yl «/«■.:;«.').")  el  seq.  L.-lfrrts,  :!   Kawie   (Pa..    IMl),  M,  7:> 


918  LAW    OF    WILLS.  [§  074. 

§674.  Definition  and  construction  of  tlie  word  "  issue," 
when  it  is  ji  Avord  of  purcliJise. —  The  word  "issue"  may  be 
presumed  to  bo  used  as  a  word  of  purchase  in  the  absence  of 
any  indication  of  a  contrary  intention.  The  testator  may  indi- 
cate that  he  has  employed  it  as  synonymous  with  "  heirs  of  the 
body,"  when  it  will  be  a  w^ord  of  limitation,  and  will  create  an 
estate  in  tail.^  The  distinction  is  as  follows:  If  the  testator 
gives  land  to  A.  for  his  life,  and  after  his  death  to  his  issue, 
meaning  thereby  his  descendants,  he  will  be  presumed  to  have 
ineant  that  those  persons  who  answer  the  description  of  descend- 
ants shall  take  as  purchasers,  and  they  take,  independently  of 
statute,  as  joint  tenants.  If,  on  the  other  hand,  he  has  used  the 
word  "  issue  "  as  meaning  heirs  of  the  body,  it  will  be  presumed 
that  he  intended  the  issue  to  take  by  descent,  and  the  w^ords 
will  create  an  estate  tail,-  which  the  statute  in.  America  Avill 
turn  into  an  estate  in  fee  simple. 

The  primary  sense  of  the  word  "  issue,"  w^hen  used  as  a  word 
of  purchase  and  not  controlled  by  the  context,  has  been  held 
from  the  earliest  times  to  be  descendants  of  every  degree  of  re- 
lationship. It  is  not  to  be  restricted  to  children.  It  will  include 
descendants,  i.  e.,  offspring  of  every  description  and  every  de- 
gree of  relationship  to  the  jpropositus?    So  a  power  to  appoint 

(to  "A.  for  life,  and,  if  he  shall  leave  v.  Barnard,  152  Mass.  (1890),  67,  73; 

lawful  issue,  to  them,  their  heirs  and  Bigelow  v.  Morong,  103  Mass.  (1869), 

assigns");  Den  v.  Emans,  2  N.  J.  L.  287,  288;  Price  v.  Sisson,  15  N.  J.  Ya\. 

967;  Gibson  v.  McNeely,  11  Ohio  St.  168,177;  Weehawken  Ferry  v.  Sisson, 

131;   Powell  v.   Board  of  Domestic  17  N.   J.  Eq.   475,  484,   486:  United 

Missions,  49  Pa.  St.  46,  55;  King  v.  States  Tr.  Co.  v.  Tobias.  21  Abb.  N.  C. 

Melling,  1  Vent.  225,  232,  3  Levinz,  392:  Tierv.  Pennell,  1  Edw.  Ch.  (N.  Y., 

58,  61;  Taylor  V.  Saver,  Cro.  Eliz.  742;  1832),  354;  Palmer  'v.  Horn,  84  N.  Y. 

Shaw  V.  Weigh.  2  Strange,  798.  1  Eq.  516,  519;  Drake  v.  Drake,  134  N.  Y. 

Ab.  Cas.   184,  pL  28;    Haddesley  v.  220,  224;  Soper  v.  Brown,  136  N.  Y. 

Adams,  22  Beav.  266.     But  the  case  (1892),  244,  248,  32  N.  E.  R  768;  Chwar 

of  Henderson  v.  Henderson.  64  Md.  tal  v.  Schreiner,  43  N.  R  R  166,  148 

185,  holds  that  the  rule  is  not  appli-  N.  Y.  683,  687;  Gest  v.  Way,  2  Whart. 

cable  to  a  devise  to  A.  and  his  issue.  (Pa.)  45;  In  re  Birely's  Estate,  7  Pa. 

Gadsden  v.  Desportes,  39  S.  C.  131,  17  Dist.  R  95;  Neo  v.  Ramsay,  26  AtL 

S.  E.  R  706.    See  also  ante,  §  661.  R  770,  155  Pa.  St.   628:    Grimes  v. 

iSee  ante,  %  672.  Shirk,  32  Atl.  R.  113,  169  Pa.  St.  74; 

2  Ante,  §  673.  Shatters  v.  Ladd,  21  AtL  R  596,  28  W. 

3  Edwards  v.  Bibb,  43  Ala.  (1869),  N.  C.  33,  141  Pa,  St.  349;  Robbins  v. 
666,  672:  Jackson  v.  Jackson.  153  Quinliven,  79  Pa,  St.  333,  335;  Appeal 
Mass.  374, 376,  26  N.  K  R  112;  Hough-  of  Bowie,  24  Atl.  R  297,  149  Pa.  St 
ton  v.  Kendall,  7  Allen,  72,  76;  Hills  418;  Taylor  v.  Taylor,  63  Pa.  St.  484; 


§  G74.]     "issue"'  as  term  of  purchase  or  limitation. 


919 


among  the. issue  of  a  person  is  validly  executed  by  an  appoint- 
ment which  takes  in  the  grandchildren,  as  well  as  the  children 
of  that  person;  and  if  the  power  is  discretionary,  it  may  be 
exercised  in  favor  of  any  issue,  irrespective  of  the  fact  that  the 
parents  of  the  persons  selected  are  excluded.^ 

And  where  a  fee-simple  w^as  limited  over,  upon  default  of  an 
appointment  by  will,  to  the  issue  of  A.,  who  had  died,  leaving 
several  children  living,  some  of  whom  had  children,  the  court 
decreed  a  division  among  children  and  grandchildren  alike 
per  capita^  and  t^o\j per  stirpes?  "Where  issue  are  to  take  as 
purchasers  and  by  substitution  the  shares  of  their  respective 
ancestors  who  die  before  the  date  of  vesting,  with  a  limitation 
over  to  the  survivors  of  the  shares  of  those  who  die  w^ithout 
issue,  living  at  their  death,  the  issue  who  survive  takejper  capita^ 
where  the  direction  is  to  divide  among  them  equally.  But 
this  primary  sense  of  the  word  "issue"  is  never  conclusive, 
and  the  meaning  of  the  term  may  be  restricted  to  a  particular 
class  of  offspring,  if  this  appears  to  have  been  the  intention  of 
the  testator.* 


Gammell  v.  Ernst,  19  R  L  293,  295,  33 
Atl.  R.  222:  Pearce  v.  Rickard.  18  R.  I. 
142, 26  AtL  R  38;  Beckam  v.  De  Saus- 
sure.  9  Riclu  L.  (S.  C.)  531;  Corbett  v. 
Laurens.  5  Rick  (S.  C.)  L.  301;  Ingra- 
ham  V.  Meade.  3  Wall.  C.  C.  fU.  S., 
1834),  Jr.  42:  Adams  v.  Law,  17  How. 
(58  U.  S..  1854),  421;  Weldon  v.  Hoy- 
land,  4  De  (iex.  F.  &  J.  564:  Penny  v. 
Clarke,  1  De  Oex,  F.  &  J.  425.  431: 
Roddy  V.  Fitzgerald,  6  H.  L.  C.  823. 
881,  882:  Kavana^h's  Will.  L  R  13 
Ir.  Ch.  120;  South  v.  Searle.  2  Jur. 
(N.  S.)  390;  Hobgen  v.  Neale.  L.  R  11 
Eq.  48,  51 ;  In  re  Corlaas,  L.  R  1  Ch. 
D.  460.  45  L  J.  Ch.  119;  In  re  .Jones' 
Tru.sts,  23  lieav.  242;  Maddo<rk  v. 
Leg;?,  25  \W:\\:  531;  Hall  v.  Nalder, 
22  L  J.  Ch.  212.  17  Jur.  221:  Tn-ernan 
V.  Parsl.-y,  3  V.-s.  421,  423;  H.-riiurd  v. 
Montagu**,  1  Mer.  434;  Hockii'V  v. 
Maulx-y,  1  V(?H.  Jr.  143, 150;  nr>rsc|K)ol 
V.  WatHon,  3  Vet*.  :{S3,  384:  WytJMr  v. 
ThurlHt<^)n,  Anib.  555;  Davf-nport  v. 
Hanbury,  3  Vch.   258;  Mitchiwjn  v. 


Buckton.  23  Week.  R  480.  See  also 
case  cited  under  §  672.  The  rule  in 
the  text  is  applied  to  both  real  and 
personal  property. 

1  Drake  v.  Drake,  134  N.  Y.  220,  56 
Hun.  590;  ipost,  %%  800,  803. 

^See  cases  cited  in  note  3,  p.  918. 

3  The  word  "  offspring  "  is  precisely 
synonymous  with  "  issue,"  and  may 
be  a  word  of  limitation,  creating  an 
estate  tail  or  of  ]iurchase,  in  wliich 
case  the  rules  and  principles  laid 
down  in  the  jireceding  sections  as  ap- 
plicable to  "  issue  "  may  with  safety 
be  resorted  to.  Barber  v.  Railroad 
Co.,  166  U.  S.  83,  101.  165  Piu  St  640, 
650;  Allen  v.  Markle.  36  Piu  St  117; 
Thompson  v.  Beasley,  3  Drcwry,  7; 
Young  V.  Davies,  2  Drew.  &  Smale. 
167,  whf'ro  the  word  was  a  word  of 
limitation.  Sonn-t  imes  the  meaning 
of  (iif  tiTiii  may  be  restricted  by  tho 
contfxt  to  children.  Libtur  v.  Tidd, 
29  Bcavan,  618. 


920  LAW  OF   WILLS.  [§  675. 

§675.  Tl:o  restriction  of  the  word  "  issue  "  to  children 
as  jMirehasers. —  The  tendency  of  the  English  cases  clown 
to  recent  times  has  been  strongly  in  favor  of  the  broad  con- 
struction of  the  word  "issue"  when  it  is  employed  as  a  word 
of  purchase,  by  which  it  includes  all  descendants.  Doubtless 
this  construction  of  the  word  has  often  overthrown  the  true 
intention  by  diverting  the  testator's  gift  beyond  his  children. 
In  a  late  English  case  it  has  been  remarked  that  the  popular 
sense  of  the  word  "issue  "  is  children;'  and  we  find  Chancel- 
lor Kent,  in  his  Commentaries,  stating  that,  while  "  issue  "  may 
be  a  word  of  limitation  or  a  word  of  purchase,  yet  it  is  gen- 
erally used  by  the  testator  as  synonymous  with  "  children."  ^ 
!More  recently  still,  Mr.  Redlield,  in  his  valuable  Treatise  on 
AVills,'  has  inserted  several  strong  observations  on  the  injustice 
of  construing  the  word  "  issue  "  as  synonymous  with  descend- 
ants of  every  degree.  These  suggestions  and  observations  on 
the  rule  have  had  the  effect  of  causing  the  courts  in  recent 
times,  particularly  in  America,  to  restrict  the  meaning  of  the 
term  so  that  it  shall  take  in  children  only.  They  will  seek  for 
indications  of  an  intention  on  the  part  of  the  testator  in  this 
direction,  and  this  intention,  though  ascertained  from  slight 
hints  and  suggestions,  will  prevail. 

The  question  is  not  as  to  the  popular  meaning  of  the  word, 
but  what  the  testator  meant  by  using  it.*  Its  technical  mean- 
ing must  prevail  where  the  testator  does  not  show  that  he  in- 
tended that  it  should  have  another  meaning.  If  it  appears 
from  the  context  that  the  testator  intended  to  restrict  the  mean- 
ing of  the  word  "  issue  "  to  children  only,  it  should  be  so  con- 
strued. But  in  the  absence  of  indications  of  that  intention,  its 
technical  and  primary  meaning  must  prevail. 

We  will  consider  cases  in  which  the  testator  has  used  the 
word  "  issue  "  in  its  restricted  meaning.  Thus,  where  it  is  pro- 
vided, in  connection  with  a  devise  either  to  persons  or  to  a 
class,  that  the  issue  of  any  dying  before  the  time  of  distribu- 
tion shall  take  their  parenfs  share,  the  word  "  issue  "  w^ill  be 
held  to  mean  "children."  The  use  of  the  ^\ov(^.  par e7it  very 
clearly  indicates  that  the  idea  of  the  relation  ol parent  and 

1  Ralph  V.  Carrick,  L.  R  11  Cb.  D.        3  Part  2,  p.  363. 

882,  885.  ••  For  cases  in  which  "  heirs  "  has 

2  4  Kent,  Com.  278.  been  construed  "  children,"  see  §  616. 


§  675.]     "issue"  as  term  of  puechase  ok  limitation.        921 

child ^  and  not  that  of  ancestor  and  descendant,  was  in  the  mind 
of  the  testator.^ 

A  direction  that  a  gift  of  land  as  a  remainder  is  to  go  to 
issue  of  the  life  tenant,  with  an  added  direction,  "if  only  one 
child  (/.  «?.,  of  the  life  tenant),  then  to  such  only  child,"  does 
not  of  necessity  interpret  the  word  "  issue  "  as  synonymous 
Avith  "children;"  for  here,  though  the  testator  may  mean 
that,  if  the  issue  consist  of  only  one  child,  that  child  shall  take, 
he  does  not  mean  to  exclude  other  issue  if  there  be  more  than 
the  one  child.-  An  onlv  child,  consistent  with  the  lanffuai^e 
of  the  will,  may  take  by  descent,  and  all  the  issue  of  the  first 
taker  may  take  through  him.  But  when  the  property  disposed 
of  is  personalty,  which  is  distributed  and  does  not  descend,  the 
use  of  the  word  "issue"  as  equivalent  to  "heirs  of  the  body" 
is  improper,  so  that  if  one  gives  personal  property  to  "issue," 
and  if  "  one  child,  then  to  that  child,"  the  inference  is  conclu- 
sive that  children,  and  not  more  remote  issue,  were  meant  by 
the  word,  and  al.so  that  "  issue  "  is  a  word  of  purchase,  not  of 
limitation.'  So,  also,  where  the  devise  was  for  the  issue  of 
A.  laxofully  begotten  hy  hira  of  his  hody;  *  or  where  there  is  a 
devise  to  children  in  remainder  after  the  death  of  the  parent 
who  is  the  life  tenant,  and  "*';i  default  of  issue  ^^^  then  over;' 
or  where  the  gift  in  the  first  instance  is  to  issue  for  life^  and 

1  Sibley  v.  Perry,  7  Ves.  522;  Ross  point,  Caulfield  v.  MacGuire,  2  Jo.  & 
V.  Ross,  20  Beav.  645;  Bryden  v.  Wil-  Lat.  162,  176;  Evans  v.  Jone.s.  2  Coll- 
lett,  L,  R  7  Eq.  472,  475;  Lanphier  v.  yer,  516, 524-526;  Haydou  v.  Wilsliere, 
Buck,  2  Drew.  &  Smale,  484,  493;  3  T.  R  372,  wliicli  holds  that  the 
Parkhurst  v.  Harrower,  142  Pa.  St.  phrase  "lawfully  begotten"  is  not 
432.  21  AtL  R  826;  Palmer  v.  Horn,  .sufiicient  to  limit  the  meaning  of  the 
84  N.  Y.  516;  Mc-Pherson  v.  Snowdeti,  term  to  children. 

19  Md.  197,  203;  King  v.  Savage,  121  ^Jn  a  devise  to  A.  for  life,  remain- 
Mass.  303,  306;  McJJregor  v.  Me-  der  to  his  children,  and  a  devise  over 
Oregor,  1  De  Gex.  Fisher  &  Jo.  63.  on  the  death  of  A.  without  issue,  tl>e 
For  ca.ses  in  which  the  words  "lieirs  meaning  of  tiie  w(jrd  "issue"  will  he 
of  the  Ixjdy  "  have  Ixjen  coiistnit'd  its  coiifiiH-il  to  tfucli  issue  as  would  take 
"chililren  "and  a«  words  of  purchase,  under  tlie  former  limitation.  In  re 
see  ante,  g  659.  Wyndham's  Tru-st.s,  K  R  1   Kq.  290; 

2  Rjddy  V.  Fitzgenild.  I^  R  6  IL  U  Pride  v.  F.wkH,  3  De  Gex  &  Jo.  252. 
CaHe«,  K2:{.  280;  IIo«lges  v.  Harpur.  3  Do  Gex  & 

'  Burl»^>n  V.  B«.\vman,  1   Rich.  Hq.  Jo.    129;    In   re  Crawford's  Trust.  2 

111;  f'art«'r  v.  Ii«Mit.-vll.  2  Ii«'av.  551;  Drewry,  231;  Chapman  v.  Chapnum, 

H..pkin.H'  Trusts.  I^  R  9  Ch.  Div.  131.  33  It«'av.  556;  Dixon  v.  Dixon,  24  Heuv. 

♦Daniol    v.    Whart«>nhy.    17    Wall.  129. 
(W  U.  S.)  039;  but  bee,  conlnt,  on  thia 


922  LAW   OF  WILLS.  [§  G75. 

'upon  their  death  to  their  issxie,^  the  word  "  issue  "  will  be  con- 
strued in  a  restricted  sense  as  meaning  children.  So  often,  in 
a  devise  to  a  person  for  life,  with  a  remainder  to  his  issue,  the 
■word  "  issue  "  will  be  regarded  as  signi lying  his  children  alone, 
particularly  if  the  property  is  devised  over  on  a  dejinite  failure 
of  isft}ie.-  So  in  a  case  where  land  was  given  to  A.  for  life,  and 
on  his  death  to  his  lawful  issue  male,  and  the  lawful  issue  of 
such  heirs,  the  eldest  of  such  sons  to  he  preferred  hefo-re  the  oth- 
ers,^ the  court  held  that  A.  did  not  take  a  fee  tail,  but  a  life 
estate,  with  a  remainder  to  his  sons  in  order  of  priority  of  birth. 
A  provision  that,  on  the  death  of  the  life  tenant,  a  fund  is  to 
»  be  divided  among  her  then  living  issue,  "  provided  such  child,  or 
children  shall  attain  the  age  of  twenty-one,''''  and  for  want  of  such 
issue  then  over,  indicates  very  conclusively  that  the  testator, 
by  the  word  "  issue,"  meant  children  alone.'* 

The  fact  that  in  one  portion  of  his  will  the  testator  uses  the 
word  "issue"  as  clearly  and  plainly  synonymous  with  children 
may  indicate  that  he  wishes  it  to  have  that  meaning  when  used 
in  another  part  of  his  will.  But  the  fact  that  the  testator  in  one 
clause  employs  the  word  "  issue  "  in  its  restricted  sense  is  not 
always  conclusive  that  he  wishes  it  to  have  that  sense  wher- 

iPope  V.  Pope,  14  Beav.  593;  Fair-  sail  v.  York,  5  Jur.  (N.  S.)  1237;  Mar- 
field  v.  Bushel,  32  Beav.  158;  Williams  tin  v.  Holgate,  L.  R  1  H.  L.  C.  175; 
V.  Teale,  6  Hare,  239,  Heasman  v.  Pearse,  L.  R  7  Cli.  275; 

2  Hill  V.  Hill,  74  Pa.  St.  (1873),  173;  Brj-den  t.  Willett,  L.  R  7  Eq.  472, 
Way  V.  Gest,  14  Serg.  &  R  (Pa,,  1825),  475;  Wjmdliam's  Trusts,  L.  R  1  Eq. 
40;  Burleson  v.  Bowman,  1  Rich,  Eq.  290;  Sander's  Trusts,  L.  R  1  Eq. 
(S.  C„  1845),  111;  Arnold  V,  Alden,  50  675;  Crozier  v,  Crozier,  3  Drew,  & 
N,  E,  R  704,  173  111.  229;  Horn  v.  War.  386;  Lanphierv.  Buck,2Drewry 
Lyeth,  4  Har.  &  J.  (Md.)  437;  Thomas  &  Smale,  484,  493;  Rulgway  v.  Mun- 
V.  Levering.  73  Md.  451,  458,  21  AtL  kittrick,  1  Drew.  &  War.  84;  Mc- 
R  367:  McPherson  v.  Snowden,  19  Gregor  t.  ^IcGregor,  1  De  Gex,  F.  & 
Md.  (1862j,  197;  King  v.  Savage,  121  Jo.  63;  Bradley  v.  Cartwright,  L.  R 
Mass.  303,  306;  Lee  v.  Gay,  155  Mass.  2  C.  P.  511;  Buckle  v.  Fawcett,  4  Hare, 
(1892),  423,  29  N.  E.  R  632;  Howland  536,544;  Livesay  v.  Walpole.23  Week. 
V.  Slade,  155  Mass.  415,  29  N.  K  R  R  825;  Bradshaw  v.  Melling.  19  Beav. 
631;  Bigelow  v.  Morong.  103  Mass.  417;  Machell  v.  Weeding,  8  Sim.  4: 
(1809),  287,  289;  Neo  v.  Eamsey,  155  Rhodes  v.  Rhodes,  27  Beav.  305:  Mar- 
Pa.  St.  628, 26  Atl.  R  770;  In  re  Wells,  shall  v.  Baker,  31  Beav.  608;  Fairfield 
3  Dem.  (N.  Y.)  86;  Palmer  v.  Dun-  v.  Bushell,  32  Beav.  158. 
ham,  125  N.  Y.  68,  25  N.  R  R  lOsi;  SMandeville  v.  Lackey,  3  Ridg.  P. 
Shaker  v.  Ladd,  8  Pa.  Co.  Ct.  R  528;  C.  352. 

Wistar  v.  Scott,  105  Pa.  St.  200.  213;  *  Ryan  v.  Crowley,  1  LL  &  G.  7. 
Bruen  v.  Osborne,  11  Sim.  132;  Bird- 


§  675.]     "issue"  as  tekm  of  pukchase  or  limitation.        923 

ever  it  is  used.^  Thus,  where  the  testator  conferred  a  power  of 
appointing  a  fund  among  A.,  B.  and  C.  and  their  issue  upon  D., 
and  in  case  of  the  death  of  either  A.,  B.  or  C,  during  D.'s  life, 
the  issue  was  to  take  the  parent's  share,  though  by  the  hitter 
words  issue  was  restricted  to  children^  the  power  of  the  donee 
was  not  restricted  to  an  appointment  among  children.-  On  the 
other  hand,  where  property  was  placed  in  trust  for  A.,  and  after 
his  death,  should  he  have  issxie^  then  to  maintain  and  educate 
the  issue  '''■share  and  share  al'ike^''  and  on  their  majority  to  trans- 
fer to  them,  and  if  only  one  then  to  that  one,  and  the  testator 
followed  this  up  with  a  provision  for  the  children  of  A.,  to  be 
employed  in  such  manner  "««  he  had  already  directed  as  to  his 
funded  property^''''  the  court  held  that  the  word  "  issue  "  as  used 
was  by  the  context  precisely  synonymous  with  children.'  The 
ascertainment  of  the  meaning  of  the  word  "  issue  "  is  important, 
where  there  is  a  devise  of  a  life  estate  to  A.,  with  a  remainder 
to  his  issue,  and,  in  default  of  issue,  remainder  to  his  heirs.  As- 
suming that  the  failure  of  issue  pointed  out  is  a  definite  failure 
of  issue,  the  question  arises  whether  issue,  in  the  limitation  of 
a  remainder  to  the  issue  of  A.,  means  his  children  to  the  ex- 
clusion of  other  descendants,  and  whether  his  death  without 
leaving  children,  but  leaving  other  issue,  as  grandchildren,  sur- 
viving, will  defeat  the  remainder  over.  The  general  rule  in 
such  cases  is  that  the  gift  over  will  be  defeated  if  there  are  a)(y 
issue,  whether  children,  grandchildren  or  more  remote ;  and  that 
this  being  the  meaning  of  the  term  "issue"  in  the  latter  part 
of  this  disposition,  it  should  also  be  its  meaning  in  the  former 
part.  Ilcnce,  even  where  the  immediate  gift  of  a  remainder 
to  the  issue  is  coupled  with  a  ])rovision  that  issue  shall  take 
their  parent's  share,  the  word  "issue"  will  not  always  be  con- 
strued children  of  the  life  tenant,  but  will  be  construed  descend- 
ants, becau.se  of  the  meaning  attached  to  it  in  the  latter  i>art 
of  the  clause.* 

'  CaulfioM  V.  ^r.-if,-uire.  2  Jo.  &  T-it.  » Ellis  v.  Selby.  7  Sim.  3r)2. 

176;  Head  v.  li;in.Jull,  2  Y.  «&  C.  C.  C.  *  li^ilpli  v.  ("arrick,  L.  R  5  Cli.  D. 

2:J1;  Cjirtor  V.   IJ^-nUill,  2  \V-i\\.  5r,l;  981;  HofK-r  v.  Hrown.  IMfl  N.  Y.  244. 

CurH»iJini  V.  Ncnv lurid,  2  Hin^.  N.  C.  .'W  N.  E.  It.  TtiH.     In  I'alincr  v.  IKirii. 

"iH,  'I  S<ott,  10.',,  2  W'iw.  \W  4  M(M's.  8 J  N.  Y.  rjKi.  <>ii  paKr  r,ll»,  tlio cotirt  by 

Hi  \S .  101;  IhjdK'JH  V.  Hari)iir,  {>  15<j<iv.  I'arl.  J.,  sjiys:  "Tlu'  word  'issuu'is 

4T!t.  ail  aiiil)iK»i>us  Wx\\\.     It  may  iiu^in 

^  Dniko  V.  I)rakc;,  ;J2  N.   M   \L  111,  di-'-cciidaiits,    ^cinTaliy,    <ir     incn-ly 

i:>t  N.  Y.  220,  ihililrcii;  and  wlu-tliur  in  a  wdl  it 


92-1:  LAW    OF    WILLS.  [§  676. 

§  GTO.  Mode  of  distribution  among  issue  as  purcliasers. — 

The  mode  of  distribution  lunong  issue,  when  they  take  as  pur- 
chasers, depends  wholly  upon  the  intention  of  the  testator  as  it 
is  expressed  in,  or  im[)lied  from,  the  language  of  the  will.  A 
gift  of  personal  estate  to  issue  simply,  where  the  testator  has 
evidently  used  the  word  to  include  all  descendants,  will  be  di- 
vided ^;t7*  cnjylta  among  them  as  a  class,  though  the  issue  may 
stand  related  in  different  degrees  to  their  ancestor.*  Often, 
however,  a  distribution  jt^t/-  sth'j^es  has  been  decreed  among  issue 
Avho  were  in  different  degrees  of  relationship  to  a  common  an- 
cestor, particularly  if  some  reference  is  made  to  a  taking  by  rep- 
resentation or  sul)stitution.- 

A  direction  that  a  fund  is  to  be  divided  lefwee/i  the  issue  of 
A.  and  the  issue  of  B.  equally  will  indicate  a  distribution  of  an 
equal  share  ;per  stirpes  among  the  issue  of  A.  and  B.  respect- 
ively, and  the  children,  grandchildren  and  remoter  issue  of  the 
persons  named  will  take  by  representation.'  And  Avhile  a  de- 
vise to  the  issue  of  a  person,  in  case  he  shall  be  deceased  before 
distribution,  shrqMcikr^  may  not  be  enough  alone  to  indicate  a 
division  j^^^'  stirpes  among  that  issue,  and  all  the  descendants 
of  the  deceased  person  may  take  ^>^?'  capita,*  yet  it  has  been 
held  in  an  American  case  that  a  direction  that  in  case  of  the 
death  of  the  legatee  his  issue  shall  stand  in  the  parent's  place  ^ 

sliall  be  held  to  mean  the  one  or  the  Riley  L.  (S.  C.)  282,  284;  Hogben  v. 

other  depends  upon  the  intention  of  Neale,  L,  R.  11  Eq.  48  (1870);  Daven- 

the  testator  as  derived  from  the  con-  port  v.  Hanbury,  3  Ves.  257;  Jones' 

text  or  the  entire  will,  or  such  ex-  Trusts.  23  Beav.  242,  243;  Mitchison 

trinsic    circumstances    as    may    be  v.    Buckton,   23    W.   R.    480    (1875); 

considered.    In  England,  at  an  early  Leigh    v.    Norbury,     13    Ves.    340; 

date,  it  was  held,  in  its  primary  sense,  Weldon  v.  Hoyland,  4  De  Gex,  F.  «fe 

when  not  restrained  by  the  context,  Jo.  564;  Freeman  v.  Parsley,  3  Ves. 

to  be  co-extensive  and  synonymous  421,423;  Ridley  v.  McPherson  (Teun., 

with    descendants,    comprehending  1897),   43  S.   W.   R.   772;   Pearce    v. 

objects  of  every  degree.   But  it  came  Rickard,  18  R.  L  (1893),  142,  26  Atl. 

to  be  apparent  to  judges  there  that  R  38.    And  see  further  cases  cited 

such  a  sense  given  to  the  term  would,  under  §  674 

in  most  cases,  defeat  the  intention  of  ^  Dexter  v.  Inches,  147  Mass.  324 

the  testator,  and  hence  in  the  later  (1888),  17  N.  E.  R.  551. 

cases  there  Ls  a  strong  tendency,  un-  =*  Brett  v.  Horton,  4  Beav.  239. 

less  restrained   by  the  context,   to  *  Weldon  v.  Hoyland,  4  De  Gex,  F. 

hold   tliat  it  has    the    meaning   of  &  Jo.  504;  Birdsall  v.  York,  5  Jur. 

cliildren."  (N.  S.)  1237. 

1  Corbett  v.  Laurens,  5  Rich.  Eq.  5  Lock  wood's  Appeal,  55  Conn.  157, 

(S.  C,  1853),  301;  Purcell  v.  Purcell,  10  AtL  R.  517. 


§  077.]     "issue"  as  term  of  tukchase  ok  LniixATiox.        025 

Avould  require  a  distribution  among  the  issue  j9<'/'  sti/'j^es  through 
every  degree  of  remoteness  of  descent.^  AVhere  the  direction 
Tvas  to  divide  a  residue  equally  hefwccn  my  two  sisters  and  the 
lawful  issue  of  my  two  deceased  sisters  in  equal  shares  if  more 
than  one  of  such  respective  issue,-  a  distribution  j?c^/'  stirpes  was 
ordered.^ 

^  6<7.  Meaning:  of  the  word  ^^  descendant." — This  word  is 
in  no  wise  ambiguous.  Its  primary  meaning  is  precisely  syn- 
onymous with  issue,  heirs  of  the  body,  i.  e.,  posterity  of  every 
degree  of  relationship.'*  Xo  necessity  exists  that  the  word 
should  be  construed  as  equivalent  in  meaning  to  next  of  kin  or 
relations,  nor  that  any  collateral  relations  should  be  included 
under  the  term.  Hence,  the  word  "descendants  ""  of  A.  does 
not  include  brothers  and  sisters  of  A.*  The  word,  unlike  re- 
lations and  next  of  kin,  has  a  fixed  and  definite  meaning.^  No 
reference  to  any  statutes,  whose  phraseology  differs  in  different 
states,  is  necessary  to  ascertain  its  ordinary  signification,  for 
its  technical  and  its  ordinary  meaning  are  the  same,  i.  e.,  in- 
dividuals who  are  branches  of  the  same  common  stock.  Thus, 
the  descendants  of  A.  not  only  include  his  children  but  his 
grandchildren,  great-grandchildren,  etc.'      The  context  may 

1  In  Cushney  v.  Henry,  4  Paige  ^ "  Descendants,  those  who  have 
(N.  Y.),  345,  854,  the  devise  was  to  the  issued  from  an  individual,  and  in- 
issue  of  several  persons  named  A.,  B.  dude  his  children,  grandchildren, 
and  C, and  to  their  issue,  "one  share  and  their  children  to  the  remotest 
to  the  issue  of  each,  to  take  as  ten-  degree.  The  descendants  form  what 
ants  in  common,"  and  a  division  per  is  called  the  direct  descending  line. 
stirpes  was  directed.  Tiie  term  is  opposed  to  ascendants." 

2  Davis  V.  Bennett,  4  De  Gex,  F.  &  Jewell  v.  Jewell,  -'S  Cal.  (1SG5),  23a 
Jo.  327,  ;J29.  "Atherton   v.  Crowther.  19  Beav. 

'The  cases  wiiich  are  cited  under  418,  451;  Pierson  v.  tJarrett.  2  Bro. 

section  G7H,  jtost,  as  examples  of  the  C.  C.  38,  44;  In  re  Flower,  02  L.  T. 

mode   of   distributing  pro{)eity  de-  210.  220  (No.  1);  Weldon  v.  Ilyland,  4 

vised  to  descendants  are  also  appli.  De  (iex,  F.&  J.  504:  ^lercantile  Bank 

cable  when  the  (juestion  is  as  to  the  v.  Ballard,  85  Ky.  481 :  Baker  v.  Baker, 

prop-r  mode  of  <li.stributing  property  8(  Jray(Mass.),  1(U  ;  .Mit<'lu'll  v.  Thorno, 

given  to  issue  who  are  to  tak*;  iis  pur-  134  N.  Y.  530,  32  N.  E.  IL  12;  Bryan 

cha-sers.  v.  Wilson.  20  (ia.  4H0  (1S50);  Walker 

*  2  He.lfield  on  Wills,  74;  Williams  v.  Walker,  25  Ca.  42H  (1858);  McLure 
on  Exe<;uUirH,  1202.  v.   Young,   3    Kicli.    Eq.   (S.    C.)  550; 

*  Armstrong  v.  Moran,  1  Braiif.  314;  Sithmaun/,  v,  (iross,  132  Mass.  144; 
Ban^tow  v.  (Jcxxlwin.  2  I'.radf.  (.\.  Y.)  In  r.-  (Jreen,  131  N.  Y.  580,  15  N.  Y. 
413,  410;  Hamlin  v.  Osgood,  1  Itedf.  «.  240. 

(N.  Y.)  409,  4 1 1. 


920  LAW    ()!•    WILLS.  [§  CT7. 

restrict  the  meanini^  of  the  ^vord  "  dcsccmlants."  Thus,  where 
the  devise  was  to  "  issue,  children  or  descendants  "  of  a  life  ten- 
ant, and  he  left  children  and  grandchildren,  the  former  took, 
excluding  the  grandchildren.^ 

In  an  English  case  where  real  property  was  given  "  to  the 
desert) da nt-s  ot  A.  now  livhuj  in  or  ahout  S.,  or  hereafter  living 
anywhere  else,''''  all  of  A.'s  posterity  were  admitted,  grandchil- 
dren and  great-grandchildren  included;  but  a  child  born  to 
the  great-grandchild  in  S.,  after  the  execution  of  the  will,  was 
excluded  by  the  words  "  now  living."  ^  And  in  one  case  which 
deserves  to  be  noted,  the  court  held  that  descendants  might 
include  collaterals.  A  gift  was  to  "  such  person  or  persons  as 
shall  be  nearest  in  hlood  to  me  as  deseendants  from  my  great 
grandfather  T.  H.,  and  whose  kindred  with  me  originates  from 
him."  The  only  person  precisely  answering  to  this  description 
at  the  date  of  the  will  was  the  testator's  sister.  Both  she  and 
her  brother  were  so  far  advanced  in  years  that  their  having 
children  was  highly  improbable.  It  was  held  that  the  descend- 
ants of  the  brother  of  T.  II.  should  take.  This  decision  is  clearly 
wrong,  for  while  a  man  may  be  a  descendant  from  his  father 
or  grandfather,  he  cannot  in  any  acceptation  of  the  term  be 
the  descendant  of  his  uncle  or  grand-uncle.^ 

1  Thomas  v.  Levering,  73  Md.  451,  Swanst.  320;  Legard  v.  Ha  worth,  1 

21  AtL  R.  367.     A  power  to  devise  East,  120. 

"among  children  or  their  descend-  ^Best  v.  Stonehewer,  34  Beav.  66, 

ants"  means  not  only  living  chil-  2  D.  J.  &  S.  537.     Mr.  Roper  in  his 

dren    and  the    descendants    of   de-  work  on  Legacies,  on  page  136,  says: 

ceased  children,  but  the  descendants  '•  Attempts  have  been  made  to  induce 

of  children  who  may  be  alive.     Hil-  the  court  of  chancery  to  put  the  same 

len  V.  Iselin,  67  Hun,  444,  22  N.  Y.  S.  construction  upon  the  word  'descend- 

282.  The  testator,  who  was  a  widower  ants'  as  upon  the  term  'relations,' 

without  living   issue,  devised  prop-  but  the  court  has  constantly  refused 

erty  to  "  all  his  relations  who  may  the  application,  since  the  principle 

]irove  their   relationship   to  me  by  wliich  applies  to  the  latter  case  does 

lineal  descent."    The  court  held  that  not  apply  to  the  former;  for  when 

as  the  testator  had  not  required  the  a  bequest  is  made  to  '  relations,'  un- 

relations  to  prove  lineal  descent /ro?>i  less  the  court  were  guided  by  the 

him,   he    evidently  meant    descent  statute  of  distribution  in  ascertain- 

with  him  from  a  common  ancestor,  ing  the  legatees,the  disposition  would 

and  that,  therefore,  cousins  and  other  be  void  from  the  generality  and  un- 

coUaterals  might  be  included.    Craik  certainty  of  the  term;  but  when  the 

V.  Lamb,  1  ColL  489.  word  '  descendants '  is  used,  there  is 

2  Crossly    v.    Clare,    Amb.    397,   3  no  necessity  for  resorting  to  the  stat- 


§  67S.]     "issue'"  as  term  of  pleciiase  or  limitation.        927 

§678.  Mode  of  distribution  aiuoiis;  descendants. —  Under 
a  devise  to  descendants  simply,  they  will  take^^r  caj){ta  unless 
the  testator  expressly  indicates  that  he  wishes  them  to  take 
otherwise.  "Where  a  provision  is  for  descendants  tyjuaUy^^  all 
take  j?^;'  capita  and  nol  per  stirpes?  On  the  other  hand,  if  the 
testator  in  providing  for  his  own  descendants,  or  for  the  de- 
scendants of  another,  refers  to  the  statute  as  providing  a  mode 
of  distribution,  the  descendants  will  take  by  representation ; 
and  the  same  is  true  where  he  gives  property  to  the  descend- 
ants of  certain  persons  whom  he  refers  to.'  TTliere  the  de- 
scendants are  expressly  directed  to  take^^-r  stirpes^  the  rule  of 
taking  by  representation  will  be  strictly  applied  to  the  de- 
scendants in  all  degrees;  children  in  each  gradation  to  the 
common  propositus  will  not  take  concurrently  with  the  de- 
scendants of  the  nearer  grade  to  him,  but  by  representation. 
So  where  the  gift  was  to  the  descendants  of  the  brothers  and 
sisters  of  the  testator  living  at  his  deaths  the  fund  was  divided 
into  as  many  equal  parts  as  there  were  brothers  and  sisters  liv- 
ing at  the  death  of  the  testator,  and  each  of  these  parts  was 
divided  into  as  many  shares  as  each  brother  and  sister  had  liv- 
ing children,  or  children  who  had  died  before  the  testator  leav- 
ing children  op  descendants,  and  each  of  these  shares  was 
again  to  be  subdivided  in  the  same  manner,  but  in  no  case  was 
a  child  or  descendant  to  take  concurrently  with  the  ancestor.* 

Doubtless  the  same  mode  of  division  ought  to  be  adopted  in 
case  of  a  devise  to  issue,  they  to  take  as  purchasers.  The  term 
"  eldest  male  lineal  descendant "  signifies  not  only  a  descend- 
ant who  is  a  male,  but  a  descendant  who  claims  through  a  male 
descendant  as  well.  The  use  of  the  word  ^'■lineal"  in  connec- 
tion with  descendant  seems  at  first  glance  mere  repetition  and 
not  as  adding  much  to  the  meaning  of  the  latter  word.     Jlut 

ute  to  fix  or  limit  the  objects  of  tlie  192;  Soutliaiu  v.  Blake.  2  W,  R  440; 

bequest,  as  the  natural  import  of  the  Rhode  L  T.  Co.  v.  Harris  (R  I.,  18U8), 

term  is  Hunifiont  to  incluilo  every  39   Atl.    R   7.")0;  Crossly  v.  Clare,  3 

in'liviiiual  iir<K;e<Miiii«  from  the  stock  Swaust.  .'320;  Butler  v.  St  ration,  3  Bro. 

or  family  r»'f<'rr(!iJ  to  by  the  testiitor,  C  C.  Ml. 

BO  that  a  lej^acy  'to  the  (li-nrruilftutH  'Rowland  v.  Gorsuch, 2  Cox  Ch.  R 

of  D.'  will  rom[»r<'liend  all  his  chil-  187. 

dren,  ;^nindrhiliJrcii,  <'tc.  "  ^(Jibson  v.  Fisher,  I^  R  J)  Eij.  51, 

1  Butler  V.  Stratt<m.:{llro.  C.  C.IiOT,  ni.     ('/.    Robinson    v.   Shepherd,    32 

2  In  re  Flower.  02  I^  T.  210,  220;  Beav.  OO.*).  10  Jur.  (N.  .S.)  .W;  Barstow 
MacGregor  v.  MacGregor,  2  Collyer,  v.  (Jofjilwin,  2  Bradf.  (N.  Y.)  413. 


928  LAW   OF   WILLS.  {^  078. 

■where,  r.sin  the  case  under  consichM-atioii,  the  testator  repeated 
it  several  times  in  the  will,  it  must  have  had  some  meanin<4-, 
and  it  could  mean  nothing-  at  all  if  it  did  not  mean  a  descend- 
ant of  male  lineage.^  Under  a  devise  to  "male  issue  of  A./' 
however,  all  lineal  descendants  are  entitled,  wliether  sons  or 
grandsons,  and  wliether  they  are  sons  of  A/s  sous  or  of  his 
daughters.- 

> Oddie  V.  Woodford,  3  Myl.  &  Cr.     dren"  meant   children   claiming 
584;  and  compare  Bernal  v.  Bernal,     throngli  males  only. 
3  MyL  &  Cr.  559,  where  "  male  chil-       2  wistar  v.  Scott,  105  Pa.  St.  200. 


CHAPTEK  XXXY. 


THE  CREATION  OF  ESTATES  IN  FEE  WITH  AND  WITHOUT 
WORDS  OF  INHERITANCE  OR  PERPETUITY. 


g  679.  A  devise  of  land  in  indefinite 
language  creates  a  life 
estate  only  at  common 
law. 
680.  The  effect  of  an  introductory- 
clause  purporting  to  dis- 
pose of  the  whole  estate. 
€81.  The  operation  of  the  word 
"  estate  "  in  conveying  the 
fee. 

682.  An  express  devise  for  life  is 

not  enlarged  into  a  fee  by 
a  gift  of  the  estate. 

683.  Fee  simple  in  the   beneficial 

interest  created  by  a  devise 
in  trust. 

684  Words  of  inheritance,  when 
not  necessary  to  create  a 
fee  at  common  law. 

685.  A  direction  to  the  devisee  of 
land  to  pay  debts  and  leg- 
acies may  enlarge  his  es- 
tate to  a  fea 


§  686, 


688. 


689. 


A  power  of  disposal  may  raise 

a  fee  by  implication. 
687.  A  life  estate  with  a  power  of 

sale  for  support. 
A  life  estate  with  power  of 

appointment  by  will. 
A  devise  of  the  fee  simple  not 

cut  down  by  a  devise  of 

"  what  remains." 

690.  The  effect  of  a  devise  over  on 

death   during  minority  in 
creating  a  fee. 

691.  Gifts  for  life  of  consumable 

articles. 

692.  A  bequest  of  the  rents  and 

profits  of  land  carries  the 
land. 

693.  Statutory  changes  in  England 

of  the  rule  which  recjuired 
words    of   inheritance    to 
pass  the  fee. 
694  Statutory  regulations  in  the 
United  States. 


§  679.  A  devise  of  land  in  indefinite  langnage  creates  a 
life  estate  only  at  common  law. —  At  the  common  law,  that 
is  to  say,  indopcndently  of  tlio  statutes  cnactinf^  that  a  deviso 
of  land  shall  carry  all  tho  interest  therein  which  the  testator 
possesses  at  his  death,  in  tho  absence  of  an  express  con  da  ry 
intention,"  it  is  tlie  rule  that  under  a  devise  of  land  couched  in 
<rencral  terms,  without  words  of  limitation  or  inheritance,  and 
in  the  absence  of  language  which  cither  expressly  or  liy  (  Icar 
im|)lication  shows  that  tho  testator  int<;nded  to  convey  the 
fee,  the  devisee  takes  a  life  estate  only.  This  is  tho  case  whero 
the  testator,  for  exam])le,  (hivises  a  j)ieco  of  ground  particu- 
lar! v  desf-riljcd   ;is  "lot  A"  (»r  dcs(rilte(|  1)\'  liim   as   his   fai'iu 


'Co.  Liu.  12;  2  Black.  Com.,  p.  121. 


S9 


930 


LAW    OF    WILLS. 


[§  670, 


or  liouso,  known  as  llio  ''])/''  farm  or  located  at  "!).,"  wliero 
the  description  is  limited  to  the  situation  of  the  land  which  is 
devised,  and  it  contains  nothing  to  show  what  estate  or  inter- 
est in  the  land  the  testator  intended  to  give.^ 

JUit  tills  common-law  rule  of  construction  is  not,  and  never 
was,  applicable  to  a  general  devise  of  ^'■all  the  estate  of  the  tes- 
tator," nor  to  a  devise  of  the  '■^residue  of  Ms  estate,''"'  nor  to  a 
devise  which  is  expressed  in  indeterminate  language,  where, 
from  the  introductory  clause  (as  will  be  subsequently  explained), 
or  from  any  other  portion  of  the  will,  it  is  clear  that  the  testa- 
tor intended  to  give  the  fee;^  for  the  presumption  of  an  in- 
tention to  give  a  life  estate  which  the  common  law  raises  in 
the  case  of  a  grant  "which  omits  "words  of  inheritance  or  lim- 
itation was  never  conclusive  in  a  will.  If,  from  the  whole  will, 
it  appeared  that  the  testator  intended  to  give  the  fee,  or  to 
give  all  the  interest  which  he  had  in  the  lands  devised,  it  Avould 
pass,  although  he  had  not  used  words  of  inheritance.  And  gen- 
erally the  courts,  both  of  law  and  equity,  have  from  early  times 


1  Holmes  v.  AVilliams,  1  Root  (Conn., 
1795),  341 ;  Sheldon  v.  Rose,  41  Conn. 
371;  Doe  v.  Dill,  1  Houst.  (Del.,  1856), 
398;  Dodd  v.  Dodd,  2  Houst.  76; 
Cordry  v.  Adams,  1  Harr.  (Del.)  439, 
441;  McAleer  v.  Schneider,  2  App. 
D.  C.  461;  Scott  v.  Alexander.  2  Houst. 
(Del.)  241 ;  Jones  v.  Bramblet,  1  Scam. 
(2  111.,  1836),  276;  Cleveland  v.  Spil- 
man,  25  Ind.  (1865),  95,  99;  Korf  v. 
Gerichs,  145  Ind.  134, 137,  44  N.  E.  R. 
24;  Ross  v.  Ross,  135  Ind.  367;  Brand 
V.  Rhodes'  Adm'r  (Ky.,  1895),  30  S. 
"VV.  R  597;  Arrants  v.  Crumley,  48 
S.  W.  R.  342;  Wilson  v.  Curtis,  90 
Isle.  463,  38  Atl.  R.  365;  Newton  v. 
Griffith,  1  Har.  &  G.  (Md.)  311;  Beall 
V.  Holiues,  6  Har.  &  J.  ([Md.,  1827), 
205.  208;  O wings  v.  Reynolds,  6  H. 
&  J.  (Md.)  226;  Wait  v.^Belding,  24 
Pick.  (41  Mass.)  129,  133,  139;  Fan-ar 
V.  Ay  res,  5  Pick.  (22  Mass.,  1827),  404: 
Fearing  v.  Swift,  97  Mass.  413,  415; 
Den  V.  Sayre,  1  N.  J.  L.  598;  Fogg  v. 
Clark,  1  N.  H.  (1818),  163;  Lummus 
V.  MitcheU,  84  N.  H.  (1856),  39,  47; 


Lippen  v.  Eldrod,  2  Barb.  (N.  Y.)  131 ; 
Edwards  v.  Bishop,  4  N.  Y.  62,  63; 
Jackson  v.  Wells,  9  Johns.  (N.  Y.) 
222, 224;  Jackson  v.  Embler.  14  Johns. 
(N.  Y.)  198,  199;  Ferris  v.  Smith,  17 
Johns.  (N.  Y.)  221,  223;  Harvey  v. 
Olmsted,  1  N.  Y.  483.  490;  Huil  v. 
Hull,  9  Ohio  Dec.  19;  Holme  v.  Har- 
rison, 2  Whart.  (Pa.)  283, 285;  Whaley 
V.  Jenkins,  3  Des.  Eq.  (S.  C,  1810),  80, 
84;  Goodrich  v.  Harding,  3  Rand. 
(Va.)  280;  Bullock  v.  Bullock,  8  Vin. 
Ab.  238,  pi.  10;  Roe  d.  v.  Holmes,  2 
Wils.  80  b;  Doe  d.  Crutchfield  v. 
Pearce,  1  Price,  353;  Deacon  v.  Marsh, 
Moore,  594;  Canning  v.  Canning, 
Mose.  242;  Bowes  v.  Blackett,  Cowp. 
235;  Denn  v.  Gaskin,  Cowp.  657; 
Child  V.  Wright,  8  Durn.  &  East,  64; 
Compton  V.  Compton,  9  East,  267; 
Dickens  v.  Marshall,  Cro.  Eliz.  330; 
Richard  v.  Edmunds,  7  Durn.  «&  E. 
633;  Viner  v.  Eve,  5  Ad.  &  Ellis,  317; 
Doe  d.  Roberts  v.  Roberts,  7  Mees.  & 
W.  382. 
2  Posf,  §684. 


§  G80.]  CREATION    OF    ESTATES    IN    FEE.  931 

strained  after  a  construction  which  woukl  pass  all  the  interest 
of  the  testator.^ 

§  680.  Tlie  effect  of  an  introductory  clause  purporting  to 
dispose  of  the  whole  estate. —  A  clause  of  introduction,  and 
even  mere  fragracntarv  words  of  introduction,  stating  the  in- 
tention of  the  testator,  in  more  or  less  general  terms,  to  dispose 
of  his  whole  estate  l»j  the  ic'dl  in  which  they  are  inserted,  are  very 
common.  The  rule  is,  that  such  an  introductory  clause,  though 
clearly  showing  an  intention  to  die  testate  as  to  the  whole  es- 
tate, does  not  alone  enlarge  a  subsequent  devise  couched  in 
indefinite  language,  and  without  words  of  inheritance,  which 
at  the  common  law  would  create  a  life  estate  only,  to  a  fee 
simple.'- 

Thcse  introductory  clauses  and  exjiressions  are,  of  course, 
material  for  the  court  of  construction  to  consider  for  the  pur- 
pose of  ascertaining  the  whole  intention  of  the  testator.  They 
are  as  much  a  part  of  the  Avill  as  an}"  other  clause,  and,  while 
they  should  not  be  pushed  too  far  in  an  eifort  to  ascertain  the 
intention,  if  they  are  used  with  language  justifying  a  slight 
inference  of  an  intention  to  dispose  of  the  fee,  the}'  ouglit,  if 
possible,  to  be  construed  in  assistance  of  it.'' 

Thus,  for  example,  a  clause  at  the  beginning  of  a  will  as  fol- 
lows, "As  touching  such  worldly  interest  as  it  hath  pleased 
God  to  bless  me  with  in  this  life,  I  dispose  of  my  land  as  fol- 
lows, etc.:  I  give  to  A.  all  my  lands  and  tenements,  etc.,  freely 
to  be  enjoyed,"  has  been  held  to  create  a  life  estate  only.*     On 

'  "  I  really  believe  that  every  case  Stadlcr.  1  Munf.  (Va.)  537,  543;  Burr 

•leterinined  ufK)u  the  rule  of  law  di-  v.  Sim,  1  Wliart.  (Pa.)353, 2G2:  Wrij^lit 

rectiiiK  an  estate  for  Iif<',  if  there  be  v.  Denn.  10  Wiieat.  (23  U.  S.,  18:.'5), 

no  limitation,  defeats  tlu*  intention  20J;  Froj^morton  v.  Kershaw.  3  Wils. 

of  the  testat<jr."     liy  Lord  ManslieM,  411;  Kno<"Uer  v.  IL-ivell,  2  ('romp.  & 

in    Mudj;e    v.    Blight,   CowjK'r,   352.  Jer.  017;  Pollard's  KstJite.  3  De(Jex, 

'•Tlu-re  is  hardly  a  case  of  this  sort,  J.  &.  S.  541;  Denn  d.  (laskin  v.  (Jas- 

where  ordy  an  estate  for  life  is  held  kin,  Cowj).  057;  Doe  d.  Small  v.  Allen, 

to  jjjiss.  but  that  it  c'ounteraets  the  H  T.  K.  4!)7.  5l);{;  Lloyil  v.  .lacksoii,  L. 

t^sstator's  intentifjn;  for  where  u  tes-  IL  1  Cj>.  B.  571. 

tutor  u-ses  general  wonls  he  means        ''Charter  v.  Otis,  41   I?urb.  (N.  \.) 

to   diHi^MO    of  everything   lie   has."  523,529;  Jarkson  v.  .Merrill,  0  Johns. 

Palmer  v.  Kiehard,  3  T<;rm  R  350.  (N.  Y.,  IHlO),  lUl. 

-I)<Hld  V.  l)odd,2nouht.  (Del..  IHOl),        MVheaton   v.   AndrpRS.  23    Wcml. 

7«;  Whejiton   v.  AndreHS,   23  Wend.  (N.    Y.)  4.52,    451;     (i<H)driglit    dem. 

(N.  Y.)  452,  454:  Ste(4e  V.  Thom|»Hoii,  Drewy     v.    Barron,     II      lOast.    22(». 

14  Serg.  &  \L  (Pa.;  «4,  bU;  Wyatt  v.  Though,  if  the  projierty  disiM)sed  nf 


932  LAW    OF    WILLS.  [§  081. 

the  other  hand,  in  many  cases  wliere  tlic  testator  has  inserted 
an  introihiotory  chiiise  purporting  to  show  an  intention  to  dis- 
pose of  all  his  goods,  and  particularly  Avhere  he  states  his  in- 
tention to  dispose  of  all  his  estate,^  and  then  gives  a  piece  or 
parcel  of  land  in  indefinite  language  and  without  words  of  in- 
heritance, and  also  omitting  the  residuary  clause,  the  presump- 
tion that  the  testator  intended  to  create  a  life  estate  only  is 
conclusively  rebutted,  and  the  fee  will  pass  under  the  devise.'^ 
§  r>81.  The  operation  of  the  word  "estate"  in  conveying 
the  fee. —  The  word  "  estate,"  when  it  is  employed  in  a  will  in 
reference  to  real  property,  may  express  either  the  quantity  of 
the  interest  in  the  real  property  "which  is  devised  or  the  iJiing 
wJcich  is  devised.  In  some  cases  it  may  express  both,  and  the 
sense  in  which  it  is  used  in  any  case  must  always  be  determined 
by  the  language  of  the  will.  Thus,  for  illustration,  the  testa- 
tor may  employ  the  word  to  describe  the  subject  of  the  devise, 
as  where  he  devises  "  my  estate  at  A."  or  "  my  estate  called  A." 
The  word  means  then  that  parcel  of  land  which  is  owned  or 
leased  by  the  testator,  and  which  is  located  at  A.,  or  which  is 
called  A.  On  the  other  hand,  the  testator  may  have  employed 
the  word  "estate"  to  describe  his  interest  in  real  property 
without  reference  to  its  location,  as  where  he  devises  all  his 
real  and  jx^rsonal  estate  of  whatsoever  nature,  and  wheresoever 
located,  or  where,  in  the  introductory  clause  of  his  Avill,  he 

under  such  a  clause  was  charged  man,  1    H;irr.   &    McH.   Old.)  452; 

with  the  payments  of  debts  or  lega-  Goodrich  v.  Harding,  3  Rand.  (Va.) 

cies,  a  fee  would  undoubtedly  pass  280.    Tlie  introductory  clause  of  a 

by  these  words.     Lovacres  d.  Mudge  will  recited:  "Touching  such  worldly 

V.  Blight,  Cowp.  352.  estate    wherewith  it  hath    pleased 

1  See  cases  cited  in  next  note.  God  to  bless  me.    ...     I  give  and 

-  Franklin  v.  Harter,  7  Blackf.  (Ind.,  dispose  of  in  tlie  following  manner." 

1844),  488,  490;  Stevenson  v.  Druley,  Tlien  followed  a  number  of  legacies 

A  Ind-  (1853),  519;  Pattisou  v.  Doe,  7  to  each  of  the  testator's    children 

Ind.   282,   289;    Charter    v.   Otis,  41  and  heirs  at  law  except  his  son,  S., 

Barb.   (N.  Y.)    523,   529;    Cassell    v.  each  bequest  ending  with  the  words 

Cooke,  8  Serg.  &  R  (Pa.)  268,  288;  "and  no  more."    Lastly,  a  devise  to 

Shriver  v.  Myer,  19  Pa.  St.  89;  Eei-  S.  of  all  his  realty,  witliout  words  of 

mer's    Estate,   159  Pa.  St.  212,  220;  limitation,  and  omitting  the  clause' 

Hupp  V.  Eberly,  79  Pa,  St.  141,  145;  "and  no  more."    Held,  that  S.  took 

Busby  V.  Busby,   1    Dall.  (Pa.)   226;  a    fee.     Saulsbury,    Ch.,   dissenting. 

"Waring  v.  Middleton,  3  Des.  (S.  C.)  Doe  v.  Patten  (Del,  1895),  IG  Atl.  R. 

Eq.  249,  252;  Davies  v.  Miller.  1  Call  558. 
(Va.,  1797),  127;  Winchester  v.  Tilgh- 


§  GSl.] 


CEEATION    OF    ESTATES    IN   FEE. 


93a 


states  it  to  be  his  purpose  to  dispose  oi  iill  7i  is  worldhj  esfafe- 
by  his  wilL  In  the  absence  of  any  statute  creating  a  presump- 
tion that  the  testator,  by  general  words,  intended  to  devise  all 
the  interest  which  he  owned,  it  has  long  been  an  established 
rule  of  construction  that  a  devise  of  the  testator's  estate  sren- 
erally,  without  any  words  of  inheritance,  succession  or  limita- 
tion, would  carry  a  fee  simple  in  land.^ 

And  it  is  immaterial  whether  the  word  "estate  "  is  employed 
in  the  dispositive  portion  of  the  Avill  or  in  a  clause  disposing  of 
land,  or  whether  it  is  inserted  in  the  introductory  clause  in  the 
form  of  a  statement  that  the  Avill  is  to  dispose  of  the  testator's 
whole  worldly  estate.  The  English  cases  hold  that  the  word 
"  estate  "  will  pass  the  fee,  even  though  it  is  accompanied  by 
words  which  refer  to  and  indicate  the  locality  and  the  situa- 
tion of  the  estate,  as  "  my  estate  at  A."  or  "  in  A."  ^  Thus  in 
England,  prior  to  the  passage  of  the  statute  1  Yict.,  ch.  26, 
which  enacted  that,  where  real  estate  is  devised  to  any  person 


•Hungerford  v.  Anderson,  4  Day 
(Conn.,  1809),  368,  373;  Warner  v. 
Williams,  54  Conn.  470,  473,  9  Atl.  R 
136;  Den  v.  Bowne,  3  Harr.  (Del., 
1840).  210,  213;  Donovan  v.  Donovan, 
4  Harr.  (Del.)  177, 178;  Doe  v.  Kinney, 
3  Ind.  (1851),  50,  51;  Doe  v.  Ilarter,  7 
Blackf.  (Ind.)  488;  Howard  v.  How- 
ard, 4  Bush  (Ky.),  494,  497;  Deering 
v.  Tucker,  55  Me.  (1867),  284,  287; 
Chamberlain  v.  Owings.  30  Md.  (1868), 
447,  455;  Kellogg  v.  Blair,  6  Met. 
(Maas.)  322,  325;  Godfrey  v.  Humph- 
rey, 18  Pick.  (35  Mass.  I  537,  539;  Tracy 
V.  Kilburn,  3  Cash.  (57  ^[ass.,  1819), 
557,  558;  Brown  v.  Wofjd,  17  Mass. 
08;  Forsaitii  v.  Clark,  21  N.  H.  423; 
Fogg  V.  Clark,  1  N.  U.  (181N).  163; 
McAffee  v.  Cilmore,  4  N.  11.  391; 
Leavitt  v.  Wwjster,  14  N.  11.  550,  563; 
HerlK'rt  v.  Smith,  1  N.  J.  Eq.  141, 
146;  Norris  v.  Clark,  10  N.  J.  h>i.  51, 
57;  Wliittak<-r  v.  Wliittakcr,  40  N.  J. 
I-^l.  33.  37;  ( *art«-r  v.  (Jray  (N.  .1..  1H{)!)). 
43  Atl.  1{.  711;  .Jafkwiii  v,  .M.-rrill,  6 
JolinK.  (.\.  Y.)  1H5.  191;  .hukson  v. 
I)«  I^iiriccy.  1!  .Johns.  (.\.  V.)  :{65,  373, 
13   id.  537;  Jackson    v.    I{al)c<Kk,   12 


Johns.  (N.  Y.,  1815),  389,  394;  Jacksoa 
V.  Robins,  16  Johns.  (N.  Y.)  537.  502; 
Charter  v.  Otis,  41  Barb.  (N.  Y.)  525, 
529;  Morrison  v.  Semple,  0  Biuu.  (Pa., 
1813),  94,  97;  Holme  v.  Harrison,  3 
Whart.  (Pa..  1836),  283,  285;  Turbett 
v.  Turbett,  3  Yeates  (Pa.,  1802).  187; 
Doughty  V.  Browne,  4  Yeates  (Pa.), 
179:  Whaley  v.  Jenkins,  3  De&iua. 
(S.  C.)  Eq.  80,  82;  Hart  v.  White,  26 
Vt.  260,  267;  Kennon  v.  M'Roliert-s.  1 
Wash.  (Va.,  1791).  96,  104;  AVatson  v. 
Powell,  3  Call  (Va.),  306,  .308;  Stump 
V.  Deneale,  2  Cranch,  C.  C.(  1820),  040, 
014;  Archer  v.  Deneale.  1  Pt  U^rs  (26 
U.  S.,  1828),  585,  586:  Lean  v.  Lean,  I 
Adol.  &  Ell.  229;  Froj^morton  v.  Hol- 
liday.3Burr.  1618;  Peacock  v.  Bishop 
of  Lincoln,  3  Broil.  &  Bing.  20.  27. 

-Macareo  v.  Tall,  Amb.  181;  Ibbefc- 
8on  V.  Beckwith,  Cas.  TtMup.  TiiIU 
157;  Fletcher  v.  Smith.  2  T.  R  (WG; 
Allitort  V.  Bacon,  4  >hiulo  &  S<'l.  .300; 
Bailis  V.  (.'ale,  2  Ves.  4H;  Ho,,  d.  Child 
V.  WriKht,  7  East.  259;  Whito  v. 
Coram,  3  Kay  iV;  .loliii.  052;  (Janhufr 
V.  Harding,  3  J.  B.  .Mooro,  505. 


"93J:  LAAV    01.-    WILLS.  [§  G82. 

■without  words  of  limitation,  such  devise  shall  be  construed  to 
pass  the  fee  simple,  or  the  whole  estate  or  interest  which  tiic 
testator  had  ])ower  to  (lis[)ose  of  by  will  in  such  estate,  unless 
a  contrary  intention  shall  appear  by  the  will,  a  devise  of  "  my 
freehold  estate,  consisting  of  thirty  acres  of  land,  situated  at 

,  in  the  county  of ,  now  in  the  occupation  of  A,"'  or 

a  devise  of  "  all  my  estate,  lands,  etc.,  called  and  known  by  the 
name  of  Coal  Yard,  in  the  Parish  of  St.  Giles,  London,"^  or  a 
statement  "  I  give  Horsecroft  my  estate  that  I  now  live  on," ' 
carried  the  fee  simple  in  the  lands  thus  described  and  not  merely 
a  life  interest.  In  each  of  these  cases  and  in  others  which  nuiy 
be  found  in  the  notes,  though  the  testator  used  the  word  "  es- 
tate "  as  referring  to  a  particular  })iece  of  land,  it  was  also  his 
intention  to  include  under  it  all  the  interest  which  he  holds  in 
such  parcel  of  land. 

§  682.  All  express  devise  for  life  is  not  enlarged  by  a  gift 
of  estate. —  If  the  testator  devises  lands  in  terms  expressly  for 
life,  the  fact  that  he  also,  in  the  same  clause,  employs  the  words 
"  my  estate  and  interest  in  the  land  "  does  not  raise  the  devise 
of  the  life  interest  in  that  property  to  a  fee  simple.*  But  gen- 
erally the  word  "  estate  "  may  be  limited  in  its  meaning  by  the 
context,  so  that  the  devisee  of  the  estate  wall  not  take  the  fee 
simple.  Thus,  where  a  testator  gave  all  of  his  estate  to  A., 
with  a  limitation  over  in  case  A.  should  die  under  twenty-one^ 
■and  where  he  devised  property  to  A.  for  life,  and  at  his  death 
he  gave  the  estate  to  B./  it  w^as  held  that  the  w^ord  "  estate  " 
did  not  convey  the  fee  simple.  Independently  of  statute  it  is 
a,  rule  that  a  devise  of  the  remainder  '  or  of  the  reversion  ^  of 
the  estate,  or  of  the  lands  of  the  testator,  would  pass  the  fee 
simple  in  those  lands,  provided  he  owned  it.  But,  on  the  other 
hand,  it  seems  to  have  been  the  rule  at  common  law  that  the 
terms  "residue"  and  "remainder,"  constituting  a  residuary 
clause,  will  not  convey  the  fee,  but  that  the  residuary  devisee 

1  Gardner  v.  Harding,  3  J.  B.  !Moore,  *  Bruce  v.  Bainbridge,  5  J.  B.  Moore, 
565.  1,  2  Br.  &  Bing.  12.3. 

2  Roe  d.  Childs  v.  Wright,  7  East,  «  Key  v.  Key,  4  De  Gex,  M.  &  G.  73. 
259.  "Norton  v.  Ladd,  1  Lutw3-cli,  755; 

3  Doe  d.  Potter  v.  Frieker,  6  Ex.  510.     Baker  v.  Wall,  1  Ld.  Raym.  1«7. 
*  Bowes  V.  Blanket,  Cowp.  235:  Nor-        »  Bailis  v.  Gale,  2  Ves.  48. 

ris  V.  Tucker,  2  Barn.  &  AdoL  473. 


§§  6S3,  6S4.]  CKEATION    OF    ESTATES    IN    FEE.  935 

Avill  take  a  life  estate  only  in  the  lands  comprised  in  the  resid- 
uary clause. 

§  6S3.  Fee  simple  in  tlie  bonoflcial  interest  created  by  de- 
vise in  trnst. —  It  is  a  well  settled  principle  of  construction 
both  at  law  and  in  equity,  that  under  a  devise  to  trustees  of  a 
legal  estate  in  fee  for  the  henefit  of  A.,  or  for  the  benefit  of  a  class 
of  persons,  the  testator  will  be  presumed  to  intend  that  the 
beneficiaries  shall  take  an  equitable  interest  in  the  property  of 
precisely  the  same  extent  as  the  legal  interest  which  is  expresslj'' 
vested  in  the  trustees.  This  rule  is  recognized  where  the  testa- 
tor has  neglected  to  point  out  the  character  and  extent  of  the 
equitable  interest  of  the  beneficiaries,  in  the  absence  of  an  ex- 
pression of  a  contrary  intention  showing  that  he  intendetl  them 
to  take  less  than  a  fee.^ 

§  684.  Words  of  inheritance  not  necessary  to  create  a  fee 
at  common  law. — So  far  as  devises  were  concerned,  it  was  never 
necessary,  independently  of  statute,  to  carry  the  fee  that  the 
testator  should  employ  words  of  inheritance  or  succession  in  a 
devise  of  his  land.-  If  the  language  of  the  testator  used  in  the 
will  was  sufficient  to  show  clearly  that  he  intended  to  convey 
the  whole  estate  or  property  which  he  owned,  the  fee  would 
pass.'  Thus  a  devise  to  A.  "in  fee  simple,"*  to  A.  and  "his 
successors,"*  or  a  direction  that  A.  "shall  have  my  inherit- 
ance,"^ or  to  "A. yb;Y'y <??•,"'  or  to  A.,  to  "him  and  his  assigns 
forever^''  ^  or  a  statement  that  "  I  make  A.  my  heir,"  ^  or  a  gift 
to  A.  to  be  disposed  of  at  his  pleasure,'"  or  to  A.  and  his  family," 
or  to  a  man  and  his  executors,'-  and  generally  a  gift  which 
siiowed  tliat  the  devisee  was  to  have  full  power  in  2>"i'p<'tuitii 

1  Newlund  v.  Slicppanl,  2  P.  W.  191,  St.  480,  488;  Boutelle  v.  Bank. ','  J  All. 
2  Eq.  Ca-s.  Ab.  32«J;   Knight  v.  Selby,     R.  838,  17  R.  I.  781. 

:{ Man.  &  Grander,  92;  Hodwjn  v.  Bail,  *  Baker  v.  Kayinoinl,  8  Viii.  Ab.  200, 

14  Him.  5.")8;  Mrxjre  v.  CleKhorii,  10  j.l.  8. 

B<-av.  427;  Yarrow  v.  KniKbtly.  I^  R.  ^  1  Rollc,  :i90. 

N  CIl  7:50;  Beat  v.  Powell,  Aiiib.  :W7.  6  Widlake  v.  IlanliriK'.  ll-.bart  2,  2r». 

'/.  poxt,  1,  781.  ''Co.   Lit.  9/»,-  N  Yin.  Ab.  '^'Ofi,  pi.  «; 

2  2  BI;u;k.  Com.,  p.  108.  Cliamlx'rlaiii  v.  Turner,  Cro.  Car.  12U. 

3  Kaitman  v.  lU-al.  14  III.  244;  l^enk-  «C(..  l.il.  «.»/.. 

t'XX,  V.  Jaefjby.  'MJ  If)wa,  27:5,  27");   \m\-        "Spark  v.  Purm-ll,  lloliiirt,  7'i'/. 
••oln  V.  Lincoln.   107   Miuhs,  .V.M),   .V.»1;        "M.nnar  v.  lianlii-s.  1  Leon.  2h:J. 
Swwt  V.   Cbaw'.  2  N.  Y.  7:{.  71»;  Bar-       "( •|iapmanh« 'a.s<'.  Dyer.  ;{:i;  WriKbt 

Imyflt  V.  Rirbeylt,  20  \Ven<l.  <N.  Y.)  v.  Atkyns.  17  Vok.  2«W. 
-.7.;   -,^1.  Thompson  v.  H.H.k.  0  Ohio       '-'!{<..•  <l.  Vere  v.  Hill,  :i  Burr.  isyl. 


936 


LAW    OF   WILLS. 


[§  685. 


to  sell,  incumber  or  dispose  of  the  same  by  will  at  his  death, 
gave  him  a  fee.^ 

§  G.S5.  A  direction  to  tlio  devisee  of  land  to  pay  debts  and 
legacies  may  enlarge  his  estate  to  a  fee. —  A  condition  that 
A.,  to  whom  land  is  devised  in  general  language  witliout  words 
of  limitation,  shall  pay  the  debts  of  the  testator,  or  shall  pay 
one  or  more  legacies  given  in  the  will,  enlarges  his  estate  into 
a  fee  simple.  A  direction,  a  request,  or  an  expression  of  a  wish, 
that  such  a  person  shall  pay  debts  or  legacies,  if  it  appears  upon 
the  whole  will  to  be  equivalent  to  a  command  or  direction,  will 
be  regarded  as  creating  a  condition,  and  will  have  the  same 
effect  upon  the  character  of  the  interest  which  the  devisee  takes 
in  the  land  as  though  it  were  a  condition.  This  exception  to 
the  general  rule  is  based  upon  the  presumption  that  if  the  gen- 
eral rule  be  applied,  under  which  the  devisee  of  land  given  in 
indefinite  language  would  take  a  life  estate,  he  would  in  all 
probability  be  a  loser.  His  estate  might  terminate  by  his  death 
before  it  had  continued  long  enough  to  reimburse  him  for  the 
outlay  incurred  in  carrying  out  the  testator's  directions  or  com- 
mands.^ 


1  But  at  common  law,  where  land 
was  given  to  a  person  in  language 
without  words  of  inheritance  to  be 
freely  possessed  and  enjoyed  by  him. 
only  a  life  estate  passed.  Good  right 
d.  Drewiy  v.  Barron,  11  East,  220; 
Ashby  V.  Baines,  2  Crom.,  M.  &  R.  23; 
Bromit  v.  Moore,  9  Hare,  378.  Contra, 
Timewell  v.  Perkins,  2  Atk.  103. 

2McRee  v.  Means,  34  Ala.  (1859), 
377;  Benkert  v.  Jacoby,  36  Iowa,  273, 
275;  Doe  v.  Dill,  1  Iloust.  (Del.)  398; 
Donohue  v.  Donohue,  54  Kan.  136, 
140,  37  Pac.  R.  998;  Lindsay  v.  Mc- 
Cormack,  2  A.  K  Marsh.  (9  Ky.,  1820), 
229;  McLellan  v.  Turner,  15  INIe.  436, 
438;  Beall  v.  Holmes,  6  Harr.  &  J. 
(Md.,  1859),  205,  208;  Glenn  v.  Spry,  5 
Md.  110,  113;  Gibson  v.  Horton,  5 
Harr.  &  J.  (Md.)  177,  180;  Snyder  v. 
Nesbitt,  77  Md.  576,  581,  26  Atl.  R. 
1006;  Wait  v.  Belding,  24  Pick.  (Mass.) 
129,  139;  Bowers  v.  Porter,  4  Pick. 
198;  Curtis  v.  Fowler,  60  Midi.  696, 
33  N.  W.  R.  804;  Bell  v.  Scammon,  15 


N.  H.  (1844),  381,  390;  Lummus  v. 
Mitchell,  34  N.  H.  (1856),  39,  47;  Lea- 
vitt  V.  Wooster,  14  N.  H.  550,  562; 
Tator  V.  Tator,  4  Barb.  (N.  Y..  1848), 
431,  437;  Dumond  v.  Stringham,  26 
Barb.  (N.  Y.)  104;  Jackson  v.  Merrill, 
6  Johns.  (N.  Y.,  1810),  185,  191;  Jack- 
son V.  Bull,  10  Johns.  (N.  Y.)  148,  151; 
Jackson  v.  Staats,  11  Johns.  (N.  Y.) 
337;  Olmstead  v.  Olmstead,  4  N.  Y. 
(1851),  56,  58;  Harvey  v.  Olmsted,  1 
N.  Y.  483,  490;  Wheaton  v.  Amlress, 
23  Wend.  (N.  Y.)  452,  454;  Barlieydt 
V.  Barheydt,  20  Wend.  (N.  Y.)  500; 
Niles  V.  Gray,  12  Ohio  (1843),  328; 
Harden  v.  Hays,  9  Pa.  St.  (1848),  151; 
Fahrney  v.  Holsinger,  05  Pa.  St.  388; 
King  V.  Cole,  6  R.  I.  584;  Aljbott  v. 
Essex,  2  Curt.  C.  C.  126, 18  How.  (U.  S.) 
202;  Kennon  v.  M'Roberts.  1  Wasli. 
(Va.)  96,  99;  Gardner  v.  Gardner,  3 
Mason,  211;  Wright  t.  Denn,  10 
Wheat.  231;  Doe  v.  Holmes,  8  Durn. 
&  East,  1;  Lloyd  v.  Jackson,  L.  R.  1 
Q.  B.  571;   Goodtitle  v.  Maddern,  4 


§  GS5.]  CREATION    OF    ESTATES    IN   FEE.  937 

It  does  not  seera  to  be  material  that  the  amount  wliicli  the 
devisee  has  to  pay  is  so  small  as  compared  with  the  income  of 
the  life  estate  in  the  property  that  he  will  not  lose  anything; 
for  this  circumstance,  Avhile  it  renders  it  impossible  that  he  shall 
lose,  docs  not  prevent  the  charge  from  making  him  the  owner 
in  fee  simple  of  the  estate.^  So  too,  generally,  the  fact  that  the 
direction  given  the  devisee  to  pay  is  upon  a  contingent  event 
does  not  prevent  the  enlargement  of  his  estate  into  a  fee  simple. 
For,  upon  principle  and  upon  the  authorities,  it  is  not  so  much 
the  actual  fact  that  the  devisee  will  be  a  loser  if  he  takes  only 
a  life  estate,  but  the  jyossihiUtij  that  he  will  be  a  loser.  As  a 
matter  of  fact,  the  exception  made  where  there  is  a  direction 
to  pay  is  based  solely  on  the  inclination  of  the  courts  to  avoid 
the  operation  of  an  extremely  technical  common-law  rule,  which 
in  most  cases  overthrows  the  intention  of  the  testator.  This 
being  so,  the  courts  will  not  distinguish  between  a  case  where 
there  is  an  ahsolute  direction  to  pay,  and  one  wliere  the  carry- 
ing out  of  the  direction  is  contingent  upon  some  other  event. 

If  the  devisee  to  whom  the  land  is  given  is  in  the  same  will 
appointed  an  executor,  and  he  is  directed  to  pay  the  debts  of 
the  testator  simply,  it  will  be  presumed  that  he  was  directed 
to  pay  them  as  the  devisee  of  the  land,  not  as  the  executor. 
Such  being  the  case,  he  will  take  the  fee  in  the  land.-  This 
exception,  by  which  a  devise  in  indeterminate  language  is  en- 
larged into  a  fee-simple  estate,  is  only  applicable  where  the 
direction  to  \)-d,Y  imjyoses  a  personal  ohlig  at  ion  to  pay  ujyon  the 
devisee  of  the  land.  It  does  not  apply  at  all  wlioro  lands  are 
devised  in  indelinitc  language  to  a  person  <if(er  the  payment 
of  debts  of  the  testator,  or  after  tiic  [)ayment  of  his  debts  and 

Eiist,  -1%,  ".00;  Moore  v.  Dcnn,  2  lios.  .Ti);  Moon o  v.  Hcascin.in,  Willcs,  IMS; 

&  Pul.  247;  Doe  v,  Clarke,  5  Bos.  &  Doe  v.  Holmes,  8  T.  R  1;  Ccxultitle  v. 

Pul.  .i\-\,   9  N.  R  :}4»;    Wellock    v.  Maildern,  4  East,  41)0.     But  a  devise 

Ilainiiiond,  Cro.  Eliz.  204;  Greeve  v.  of  a  life  estate  in  expre.ss  terms  is 

Dewell,  (Jro.  Jar.  WM\  Mrwjne  v.  Ilcas*--  never  enlar>,'ed  to  a  fee  by  a  trust  to 

iiuinn,\Vill«;s, i:W;Loveiicres  V. IJliKlit,  pay  the  debts  of  tlie  testator  or  to 

(Jowj).  o.'iO;  D(X5  V.  Hieliards,  U  T.  R  pay  a  legacy,  or  to  support  a  li'f^ateo. 

.TiC;  Stevens  v.  SnellJiiK.  •"»  l-'st,  87;  (i<Hjdell    v,     Ilibl)ard.    \Vi    Mich.    47; 

Oilyer's  (Collier's)   Case,  0  (,'<ik(%  1(5;  CJauler  v.  Monin.  fi<5  MJi-li.  :{.");{. 

C*i.  Litt.  %,  «»  Ker».  l«'f;  Hlinstoti  v.  ^Doiton   v.   Ib-wer.  »;   Maddock.  51; 

Warburton.  2  Kay  &  John,  401).  Julms-.n   v.    Urady.  I-  R    11    1:4.  38U. 
»(;<j.  Lit.  i'^;  0  li.-p.  lO,/;  Cro.  Kii/, 


Das 


LAAV    OF   AVILLS. 


[§  «8C. 


specified  legacies,  Avhere  tiic  debts  arc  charged  onl\'  on  the 
land.i 

§  ()SG.  A  power  of  disposal  may  raise  a  fee  by  implication. 

A  devise  of  land  not  expressly  by  terms  of  limitation,  inherit- 
ance or  succession  creating  a  fee  may  be  raiseil  to  a  fee  sini[)lc 
if  the  testator  gives  the  devisee  an  absolute  and  uni'estricted 
jwwer  of  disposing  of  tlie  land.  It  is  not  meant  to  say  that 
this  is  the  case  where  an  estate  is  expresshj  given  for  the  life 
of  the  devisee.  But  where  no  words  of  limitation  defining  the 
quantity  of  the  interest  given  are  inserted,  and  whether  or  not 
the  common-law  rule  which  is  applicable  to  estates  in  indeter- 
minate language  is  to  be  applied,  the  fact  that  an  absolute 
power  in  full  discretion  of  disposing  of  the  land  in  fee  is  given 
is  always  a  strong  circumstance,  and  is  usually  conclusive,  to 
show  that  the  testator  intended  the  devisee  to  take  the  fee  of 
the  land.- 


1  Scott  V.  Alexander,  2  Houst.  (Del.) 
241:  Franklin  v.  Harter,  7  Blackf. 
(Ind.,  1844),  438;  McLellan  v.  Turner, 
15  Me.  (1839),  436,  438;  Olmstead  v. 
Olmstead,  4  N.  Y.  56,  57;  Jackson  v. 
Staats,  11  Johns.  (N.  Y.,  1814),  337, 
348;  Jackson  v.  Bull,  10  Johns.  (N.  Y.) 
148,151;  Heard  v.  Hortou,  1  Denio 
<N.  Y.),  166;  Spraker  v.  Van  Alstyne, 
18  Wend.  (N.  Y.)  200;  Mesick  v.  New, 
7  N.  Y.  (1852),  165;  Van  Dyke  v.  Em- 
mons. 34  N.  Y.  186;  Vanderzee  v. 
Vanderzee,  36  N.  Y.  232;  Calhoun  v. 
Cook,  9  Pa.  St.  (1848),  226;  Mooberry 
V.  Marye,  2  JilUnf.  (Va.)  453;  Mark- 
well  V.  Thorn,  28  Wis.  548;  Moor  v. 
Miller.  5  T.  R  558;  Dickens  v.  Marsh- 
all. Cro.  Eliz.  330;  Doe  v.  Allen.  8  T. 
R.  497.  "  It  has  long  been  established 
that  a  condition  or  a  direction  im- 
posed on  a  devisee  enlarges  a  devise 
without  words  of  limitation  to  an  es- 
tate in  fee  simple.  The  ground  upon 
Avliich  this  rule  of  construction  has 
been  established  is  that,  unless  the 
devisee  were  to  take  a  fee,  he  miglit 
in  the  event  be  a  loser  by  the  devise, 
since  he  might  die  before  he  had  re- 
imbursed himself  the  amount  of  the 
charge,  and  it  applies,  therefore,  to 


every  case  in  which  a  loss  is  possible. 
But  cases  in  which  the  charge  is  im- 
posed on  the  devisee  are  carefully  to 
be  distinguished  from  those  in  which 
it  is  thrown  upon  the  land  simply; 
for  in  the  latter  case,  as  the  testator's 
expressions  only  require  that  the  in- 
cumbrance should  attach  in  wliat- 
ever  hands  the  estate  may  fall,  no 
ground  exists  for  enlarging  the  es- 
tate of  anj-  devisee.  If,  however, 
the  sum  be  payable  by  the  devisee, 
though  charged  on  the  lands,  he 
takes  a  fee,  but  not  on  the  ground 
applicable  to  charges  imposed  simply 
on  the  devisee,  that  he  might  other- 
wise sustain  a  loss  —  for,  if  the  pay- 
ment be  out  of  tlie  land,  he  cannot 
possibly  be  damnified, —  but  because 
the  devisor  has  imposed  upon  him  a 
duty  tlie  execution  of  which  requires 
that  he  should  take  a  fee."'  Cook  v. 
Holmes,  11  Mass.  532  (1814).  note  cited 
with  approval  in  Snyder  v.  Nesbitt, 
77  Md.  576,  581. 

2Bolman  v.  Lohman,  79  Ala.  63; 
Benkert  v.  Jacoby,  36  Iowa,  27-3,  275; 
Christy  v.  Pullia'm,  17  111.  (1856),  59; 
Markiilie  v.  Regland,  77  111.  98;  Funk 
V.  Eggleston,  92  111.  515;   Sheets  v. 


§  CSC] 


CREATION    OF    KSTATKS    IX    FEE. 


930 


The  conferring  of  such  an  absolute  power  of  disposition  ami 
control  over  the  property  can  amount  to  nothing  less  than  a 
gift  of  the  fee.  r)Ut  if  land  be  devised  to  a  person  expressly 
for  life  only,  in  certain  and  definite  language,  Avith  a  power 
of  use  or  disposal,  an  estate  for  life  only  passes.  The  intention 
to  create  an  estate  for  life  shown  by  the  express  language  which 
is  employed  will  prevail  over  the  inference  which  may  be 
created  by  the  gift  of  the  power;  and  if  the  devisee  dies  with- 
out exercising  the  power,  the  reversion  of  the  fee  Avill  descend 
to  the  heirs  of  the  testator,  or  it  will  go  to  the  devisee  of  the 
testator  as  a  contingent  remainder  or  executory  devise,  if  he  has 
devised  it  over.  In  either  event  no  estate  in  the  hunl  will  ])ass 
tinder  the  power  until  it  has  been  executed.^     Hence,  therefore. 


Wetzel,  39  111.  App.  600;  Silvers  v. 
Canary.  109  lud.  (18S6|,  267;  Moore 
V.  Webb,  2  B.  Mon.  (Ky.)  282,  283; 
Rains.lell  v.  Ramsdell,  21  ]Me.  (1842), 
2h>?:  Pickering  v.  Liingdon,  22  Me. 
413:  Shaw  v.  Hussey,  41  Me.  495, 498 ; 
.Swope  V.  Swope,  o  Gill  (Md.,  1847), 
22.j:  Lyon  v.  Marsh,  116  Mass.  232, 
233:  Rubey  v.  Barnett,  12  Mo.  (1848),  3; 
Hazel  V.  Hagan.  47  Mo.  277, 281 ;  Gaven 
V.  Allen.  100  Mo.  293.  13  S.  W.  R  501; 
Den  V.  Young.  23  N.  J.  L.  478, 481 ;  Bor- 
den V.  Downey,  35  N.  J.  L.  74,  36  N. 
J.  I^  400,  407;  Lienau   v.   Summer- 


ley,  51  Fed.  R.  122,  2  C.  C,  A.  118,  4 
U.  S.  App.  580.  Under  a  will  giving 
to  testator's  wife  all  Ids  property 
"  during  her  natural  life,  and  at  lier 
death  slie  can  dispose  of  the  projierty 
as  slie  wants  to,"  she  has  an  unlim- 
ited power  of  disposition,  and  can 
dispose  of  the  property  by  deed  be- 
fore her  death.  Moseley  v.  Stewart, 
52  S.  W.  R.  071;  Burney  v.  Mose- 
ley, id. 

1  Patty  V.  Goolsby  (Ark.),  9  S.  W.  R. 
840,  51  Ark.  01;  MorlTew  v.  San  Fran- 
cisco R.  R.  Co.,  107  Gal.  587,  596,  40 


tield,  41  N.  J.  Eq.  381;  Den  v.  Humph-    Pac.  R.  810;  Hall  v.  Culver,  34  Conn. 


reys.  10  N.  J.  L.  (1837),  25;  Cordry  v. 
Adams,  1  Harr.  (Del.)  439.  441;  Ban- 
zer  v.  Banzer,  51  N.  E.  R.  291, 150  N.  Y. 
429;  Doe  v.  Howland,  «  Cow.  (N.  Y.) 
277,  285;  McLean  v.  Macdonald,  2 
liarb.  (N.  Y.)  534:  Bradstreet  v. 
<"larke,  12  Wend.  (N.  Y.,  1834),  002; 
Macdonald  v.  Walgrove,  1  Sandf.  Cli. 
<N.  Y.)  274;  Jackson  v.  Coleman,  2 
Jolms.  (N.  Y.,  1807),  391;  Douglity  v. 
Browne,  4  Yeates  (Pa..  1805),  179.  IHl ; 
Culliertsfjn  v.  Duly,  7  Watts  &  S. 
(Pa..  1844),  295.  297;  M<jrris  v.  Phaler, 
1  Watts  (Piu,  1H33).  3H9:  Smitli  v. 
Fulkinson,  25  Pa.  St.  1(J9;  Puncll  v. 
Wil.sfjn,  4  (irutt.  (Va.)  10;  (iuthrie 
V.  (iuthrie.  1  Call  (Va.).  7;  Stowcll  v. 
HnMtings.59  Vt.  J9»;  Wilmotii  v.  Wil- 
liiuth,3l  W.  \'a.  4;.'(5;  Smith  v.  I'l-ards- 


(1807),  404;  Glover  y.  Stillwell,  50 
Conn.  310.  318,  15  Atl.  R.  752:  Peck- 
ham  V.  Lego,  57  Conn.  553  (1889),  19 
Atl.  R.  392;  Wilder  v.  Holland,  29  S. 
E.  R.  134,  135;  Fairman  v.  Deal,  14 
111.  (1H52),  244;  Pulliam  v.  Christy,  19 
111.  (1857),  331,  334;  Boyd  v.  Stnihn. 
3(5  111,  355;  MiUberry  v.  Mulberry.  50 
111.  07;  Funk  v.  Eggh-ston.  92  111.  515, 
533;  H.aly  v.  Eastiake.  152  111.  42J; 
Kaufman  v.  Brcckcnridge,  177  111. 
305;  Skiiin.-rv.  McDowell.  1(59  111.  3(i5. 
3(59.  48  .N.  E.  R.  310;  Hcn<lers(.n  v. 
P.la<kburn.  104  III.  227;  (Jriflin  v, 
(iriflin,  141  111.  373.  31  N.  R  R.  131; 
Fra/.ier  v.  Ilassey.  43  Ind.  (IH73),  310; 
Dunning  v.  Vanduwii,  47  Ind.  (IH74). 
423;  Mart/,  v.  Si-dam.  (57  Ind.  (1879), 
210;    .Ifidiins    v.   Comptuii,    123   Iml. 


040 


LAW    OF    ■WILLS. 


[§  C87. 


ill  the  case  of  real  property,  if  the  life  tenant  'who  has  a  power 
of  disposal  has  not  disposed  of  the  same  during  his  life  in  ac- 
cordance with  the  power  conferred  upon  him  by  the  testator, 
the  fee  simple  in  the  same  will  not  go  to  his  heirs,  but  it  will 
go  to  the  persons  who  arc  appointed  as  executory  devisees  by 
the  testator. 

§  087.  Life  estate  with  power  of  sale  for  support. —  A  de- 
vise in  language  which  clearly  creates  an  estate  for  the  life  of  a 
devisee,  with  full  power  in  the  life  tenant  to  dispose  of  the  fee 
of  the  property  and  to  use  the  proceeds  thereof  for  his  or  her 
support,  or  to  use  as  much  as  he  may  need,  with  a  limitation 
over  of  "  v:hat  remains  "  at  his  death,  does  not,  of  necessity, 
create  an  absolute  estate  in  fee  simple  in  the  first  taker.  If  it 
is  clearly  apparent  that  the  testator  intended  he  should  take 
only  a  life  estate,  and  the  property  is  to  he  used  for  his  sxipport 
and  maintenance,  his  interest,  at  least  where  real  property  is 
concerned,  will  be  confined  to  that,  though  he  will  liave  a 
power  of  disposition  over  the  fee,  and  a  right  to  use  the  pro- 
ceeds during  his  life  for  his  support  or  for  other  purposes  in- 
tended by  the  testator. 

The  proviso  that  "  what  remains  "  shall  vest  in  others  after 


117,  23  N.  E.  R.  1091;  Benkert  v. 
Jacoby,  36  Iowa,  273,  275;  Payne  v. 
Johnson,  95  Ky.  183,  184;  Eamsdell 
V.  Kiimsdell,  21  Me.  288;  Shaw  v. 
Hussey,  41  Me.  495,  499;  Nash  v. 
Simpson,  78  Me.  142.  147;  Bowman 
V.  Pinkham,  71  Me.  (1880),  295,  300; 
Jones  V.  Leeman,  69  Me.  (1879),  489; 
Hatch  V.  Caine,  86  Me.  282,  29  Atl.  R. 
1076;  Benesch  v.  Clark,  49  Md.  (1878), 
497;  Stafford  v.  :\Iaitin  (Md.),  23  Atl. 
R  734;  Keniston  v.  May  hew,  169 
Mass.  166,  47  N.  E.  R.  612;  Parker  v. 
Parker,  5  Met.  (Mas&)  134;  Hatfield 
V.  Sohier,  114  Mass.  48;  Smith  v. 
Snow,  123  Mass.  323;  ]\Iorford  v. 
Dieffenbacher,  54  Mich.  594;  Goodell 
V.  HubV^ard,  32  Mich.  47;  Gauklin  v. 
Moran.  66  Midi.  353;  In  re  Gillam's 
Estate  (Minn.,  1898),  63  N.  W.  R.  10-J8; 
Groffet  V.  William,  114  Mo.  106.  21  S. 
■\V.  Pu  459;  Rubey  v.  Barnett,  12  Mo. 
3;  Swearingen  v.  Taylor,  14  Mo.  391; 


Norcum  v.  D'Oench,  17  ]\Io.  98;  Bram- 
mel  V.  Adams  (Mo.,  1898),  47  S.  W.  R. 
931;  Rail  v.  Dotson,  14  Sm.  &  M.  (22 
Miss.)  176;  Dean  v.  Munally,  36  Miss. 
358;  Edwards  v.  Gibbs,  39  Miss.  166; 
Borden  v.  Downey,  35  N.  J.  L.  74; 
IMaxwell  v.  McCreery  (N.  J.,  1898),  41 
Atl.  R.  498;  Wooster  v.  Cooper,  53  N. 
J.  Eq.  682,  33  Atl.  R.  1050;  Rood  v. 
Watson,  54  Hun,  85,  7  N.  Y.  S.  212; 
In  re  Cager's  Will,  111  N.  Y.  343,  18 
N.  E.  R.  860;  Kendall  v.  Case,  84  Hun, 
124,  32  N.  Y.  Supp.  553;  Goetz  v. 
Ballou,  19  N.  Y.  S.  433,  64  Hun.  490; 
Jackson  v.  Robins,  16  Johns.  (N.  Y.) 
537,  538;  Ryan  v.  Mahan,  39  Atl.  R. 
893;  In  re  Schmid's  Estate  (Pa.  St., 
1898),  37  Atl.  R.  928;  Kennedy  v. 
Kennedy,  159  Pa.  St.  327,  33  W.  N.  C. 
478,  28  AtL  R.  241 ;  Scott  v.  Burt,  9 
Rich.  (S.  C.)  Eq.  358;  Pillow  v.  Rye,  1 
Swan  (Tenn.),  185. 


GS^.] 


CKEATIO^T  OF   ESTATES    IN    FEE. 


941 


his  death  does  not  curtail  his  power  of  disposal  of  the  fee;  but 
■where  the  power  of  sale  or  disposal  is  not  exercised  by  the  life 
tenant  during  his  life,  the  lands  included  in  the  devise,  and 
which  remain  unsold  at  his  death,  do  7iot  descend  to  his  heirs, 
but  they  go  to  the  remaindermen  who  are  mentioned  in  the 
will  of  the  testator.  The  extent  of  the  power  of  disposition,  if 
its  limits  are  not  expressly  marked  out  by  the  testator,  will 
depend  upon  the  nature  of  the  property  and  upon  the  uses  to 
which  it  is  adapted.  If  the  primary  purpose  of  the  devise  is 
the  support  of  the  life  tenant,  and  the  remainder  of  the  prop- 
erty which  is  not  consumed  by  him  for  that  purpose  is  given 
over  to  others  upon  his  death,  the  life  tenant  may  sell  the  land 
and  he  may  use  the  proceeds  of  the  sale  for  his  support,  lie 
may  not  use  the  proceeds  for  another  purpose;  he  cannot  give 
them  away;^  nor  can  he  devise  the  land;'-  nor  can  the  fee  be 
sold  by  his  creditors.' 

And  those  persons  who  take  whatever  property  remains  un- 
used at  the  termination  of  the  life  estate  do  not,  of  course, 
though  they  may  be  the  heirs  of  the  first  taker,  take  from  him 
by  descent,  but  as  purchasers  and  remaindermen  under  the  will 
of  the  testator.* 


iSchnard  v.   Specht  180  HL  208. 

2  Munro  v.  Collins,  95  Mo.  33,  7  S. 
W.  R  401;  Baumgras  v.  Baumgras, 
24  N.  Y.  Sup.  767,  5  Misc.  R.  8;  Grif- 
fin V.  Griffin,  141  111.  373:  Johnson  v. 
Johnson,  51  Ohio  St.  440,  38  N.  E.  R 
61;  In  re  French,  52  Hun.  303,  5  N. 
Y.  Supp.  249;  In  re  Steinmetz'  Es- 
tate, 31  Atl.  R  1070,  108  Pa.  St.  171, 
30  W.  N.  C.  377. 

3  Rose  V.  Hatch,  12.-)  N.  Y.  427. 

< Giles  V.  Little,  104  U.  S.  291,  297; 
Elyton  Land  Co.  v.  McKlrath,  3  C.  C. 
A.  049.  53  Fed  R  703;  Ptjndiey  v. 
Madiwjn,  3S.  R  018.  83  Ala.  h|,S;  Funk 
V.  Kggleston,  92  111.  515;  Pritriiard  v. 
Walk.T,  22  III.  App.  2H0,  12  N.  R  R 
3;{0.  121  111.  221;  W<xjd  v.  R>lH;rts<jn, 
113  In-I.  323.  15  N.  K  R  457;  Crow  v. 
Dixon.  129  Ind.  85,  27  N.  E.  R  728; 
Huik  V.  UuHk  (Ind.,  1897).  45  N.  E.  H. 
691 :  Wili-y  v.  (in-gory.  135  Iii.j.  017, 
3-5  N.  I-l  R  r/J7;  In  re  F(jst<T'8  Will, 


76  Iowa,  364,  41  N.  W.  R.  43;  Greve 
V.  Camery,  09  Iowa,  220,  221.  28  N.  W. 
R  504;  Mack  v.  Proctor,  95  Iowa, 
172,  03  N.  W.  R  670;  Williams  v. 
Philips,  34  Kan.  514,  516-519;  Stuart 
V.  Walker,  72  Me.  145,  153;  Copeland 
V.  Barren,  72  Me.  206,  209;  Billings  v. 
Billings,  110  Mass.  225.  227;  Brady  v. 
Brady,  78  Md.  461:  Chase  v.  Lad.l, 
155  Mass.  417.  29  N.  E.  K.  (i37.  20  N. 
E.  R.  429,  153  Mass.  125;  Harliisou  v. 
James,  2  S.  W.  R  292,  90  Mr.  411; 
Munro  v.  Collins,  95  Mo.  33.  7  S.  W. 
R.  401;  Rodman  v.  Barger,  24  S.  W. 
R.  177,  IIH  Mo.  50H;  Evans  v.  Folks.  135 
Mo. 397,37 S.W.  R  120;Gloverv.  Reid. 
60  .Mich.  228.  45  N.  F^  R91;  Laiiglcy 
V.  Tilton  (N.  II.,  1897),  30  Atl.  R.  01(»: 
Kimball  v.  Ncnv  llamimhirc  Bib.  S(jc., 
23  Atl.  R  81.05  N.  H.  139;  Stevms  v. 
Flower,  10  N.  J.  E(|.  310,  19  All.  1{. 
777;  Hradway  v.  Ih.lriK's,  50  N.  .J.  Kq. 
311,25  All.  \L  190;  Robt-son  v.  Shot- 


1(42 


LAW    OF    WILLS, 


[§  CS7. 


For,  if  the  power  of  tlie  life  tenant  to  dispose  of  the  fee  of  the 
land  for  the  purpose  which  is  pointed  out  by  the  testator  has 
to  be  executed  during  his  life-time,  and  he  fails  or  refuses  to 
execute  it  for  that  purpose,  the  power  is  extinguished  by  his 
death,  anil  the  fee  passes  under  the  will  to  the  reniaintlerinen. 
The  power  which  is  annexed  to  the  life  estate,  and  by  which 


well  (N.  J..  1897),  36  Atl.  R.  730; 
Thomas  v.  Wolford.  49  Hun,  U.'i,  1 
N.  Y.  Supp.  610;  Dwyer  v.  Wells,  25 
N.  Y.  Supp.  59,5  Misc.  R.  18:  Crozier 
V.  Bray,  120  N.  Y.  366,  24  N.  E.  R.  712; 
Smithers  v.  Moody,  112  N.  C.  791,  17 
S.  E.  R.  532;  Taylor  v.  Bell,  28  Atl.  R 
208,  158  Pa,  St  651,  33  W,  N.  C,  529; 
Cox  V.  Suns,  125  Pa.  St.  522,  17  Atl. 
R.  465;  Pierce  v.  Simmons,  17  R.  I.  54.5, 
23  Atl.  Rep.  638:  In  re  Lewis,  17  R.  I, 
642.  24  Atl.  R.  140;  Dye  v.  Beaver  Cr, 
(S.  C,  1897),  26  S.  E.  R.  717;  Young  v. 
Mut.  L.  1.  Co.  (Tenn.,  1898),  47  S.  W. 
R.  428;  Thrall  v.  Spear,  63  Vt.  266,  22 
Atl.  R  414;  Larsen  v,  Johnson,  78 
Wis.  300,  306.  A  devise  "to  E.  for  her 
own  use  and  benefit,  and  also  to  make 
such  disposition  of  the  same  that  she, 
in  her  judgment,  may  deem  best, 
should  it  become  necessary  that  a 
pai't  or  all  should  be  employed  for 
the  support  of  herself  and  W.  ,  ,  . 
After  the  death  of  said  E.,  I  will 
and  devise  that  any  and  all  property 
remaining  unused  shall  be  given  to 
.said  W.,"  gives  E.  only  a  life  estate 
with  a  power  of  disposal  for  the  sup- 
port of  herself  and  W.,  and  on  the 
death  of  E.  the  remainder  to  the  lat- 
ter goes  into  effect.  Miller's  Adm'r  v, 
Potterfield,  86  Va.  876,  11  S.  E.  R.  486. 
A  devise  in  the  following  language: 
"  I  also  give,  devise  and  bequeath  to 
A.  all  the  rest,  residue  and  remainder 
of  vay  estate,  but  on  her  decease  I 
give  the  remainder  thereof,  if  any, 
to  my  children,"  vests  in  A.  a  life 
estate  and  a  remainder  in  fee  to  the 
children,  subject  to  a  iwwer  of  sale 
to  be  exercised  during  the  life  of 
A.  for  her  benefit     Leggett  v.  Frith, 


29  N.  E.  R.  950,  132  N.  Y.  7,  6  N.  Y. 
S.  158.  See  also  Munro  v.  Collins, 
95  Mo.  33,  7  S,  W.  R.  461,  where 
the  devise  was  "to  be  held  and  en- 
joyed by  her  as  her  own,  with  tliis 
request:  that  the  real  estate  shall  be 
properly  cared  for.  building  kept  in 
repair,  and  taxes  promptly  paid ;  and 
after  Iter  death  such  of  said  jjroperty 
as  sliall  tlieii  be  in  her  possession  I 
request  shall  be  given  to  our  adopted 
daughter,  to  be  hers  absolutely." 
Any  proceeds  of  the  sale  of  land 
which  have  not  been  used  by  the 
devisee  for  his  support  during  his  lif« 
belong  to  those  persons  who  are  to 
take  next  in  succession,  and  in  de- 
fault of  such  to  the  personal  rei^re- 
sentatives  of  the  testator.  Chase  v, 
Ladd.  155  Mass.  417,  29  N.  E.  R  037. 
The  tenant  of  a  life  estate  with  a 
power  of  disposal  for  certain  pui-- 
poses,  set  fortli  in  the  will,  must  act 
within  the  scope  and  limitations  of 
his  powers.  If  tlie  sale  is  permitted 
to  be  made  for  his  support  lie  must 
show  that  it  is  necessary  or  the  sale 
will  be  invalid.  He  can  only  disj^ose 
of  the  land  so  far  as  may  be  needed 
to  secure  a  reasonable  support  and 
maintenance  for  himself.  Chase  v, 
Ladd,  26  N.  E.  R.  429,  153  Mass.  126; 
Swarthout  v.  Renier,  143  N.  Y.  499, 
38  N.  E.  R.  726,  22  N.  Y.  Supp.  198; 
Larsen  v.  Johnson,  78  Wis.  300,  47  X. 
W,  R.  615;  In  re  W^att,  9  Misc.  R, 
285,  30  N,  Y,  Supp.  275;  Peckham  v. 
Lege,  57  Conn.  553,  19  Atl.  R  392. 
See  also  Hall  v.  Otis,  71  Me.  326,  330; 
Paxton  V.  Bond  (Ky.).  15  S.  W.  R 
875;  Griffin  v.  Griffin,  141  HL  373. 


§  0S7.] 


CREATION    OF    ESTATES    IN    FEE. 


04^ 


the  life  tenant  is  authorized  to  dispose  of  the  property  if  it 
shall  he  necissanj  to  do  so  in  order  to  provide  for  his  or  her  sup- 
port, or  for  the  support  of  his  or  her  children,  will  not  enable 
him  to  dispose  of  the  fee  until  the  necessity  for  support  arises.^ 
AVhen  that  arises  he  has  an  absolute  power  of  disposal  over  the 
fee  simple  of  the  property,  but  in  no  case  does  he  own  the  fee 
simple  by  reason  of  such  a  power  being  attached  to  his  life  es- 
tate for  any  other  purpose  than  his  support.-  And  the  neces- 
sity for  a  sale  in  order  tliat  he  may  be  supported,  or  in  order 
that  the  education  or  support  of  his  children  may  be  provided 
for,  is  a  condition  precedent  to  the  execution  of  the  power  to 
dispose  of  the  corjjus  or  fee  of  the  estate.  The  power  must  be 
properly  exercised,  and  the  result  of  the  disposal  of  the  prop- 
erty must  be  protected  from  waste  by  the  life  tenant,  in  case, 
as  usaalh^  happens,  the  testator  has  devised  to  others  whatever 
may  remain  after  his  death.^ 

J  Price  T.  Bassett,  168  Mass.  598,  47    86  N.  Y.  522;   Terry  v.  Wiggins,  47 


N.  E.  R.  243. 

-A  power  to  sell  and  to  use  the 
proc-eeds  for  support,  with  a  power 
of  aprKjintment  by  will  among  the 
cliildren  of  the  life  tenant,  does  not 
permit  the  life  tenant  to  sell  for  a 


N.  Y.  512;  In  re  Blauvelt,  15  N.  Y.  S. 
586,  60  Hun.  394;  Bisliop  v.  Renii)le, 
11  Ohio  St.  277;  In  re  Martin's  Es- 
tate, 28  Atl.  R  575.  160  Pa.  St.  32,  34 
AV.  N.  C.  157;  MuiTay  v.  Black,  87 
Wis.  566,  572;  Larsen  v.  Johnson.  78 


merely  nominal  consideration,  or  to  Wi.s.  300,  307;  Jones  v.  Jones,  66  Wis. 

make  a  gift  of  the  property.     Sires  310, 28N.  W.  R.  177.   Tliough  in  terms 

V.  Sires,  43  S.  C.  266,  21  S.  E.  R.  115.  the  will  creates  only  a  life  estate  in 

'GafTield  v.  Plummer  (111.,  1898),  the  first  taker,  and  directs  tliat  «-/iof 

51  N.  E.  R.  749;  Henderson  v.  Black-  remains  shall  go  over  to  the  others 

Inirn.  104  III.  227;  Kaufman  v.  Breck-  on  liis  deatli,  under  a  general  power 

inridge,  177  III.  305;  Turner  v.  Wil-  of  disposal  for  his  suj)port,  he  may 


wjn,  55  III.  Apj).  .543;  Goudie  v.  Jolin- 
wjn,  104  Ind.  427;  Bond  v.  Meier,  47 
Iowa,  6f)7,  610;  Oraham  v.  Batner 
(Ky.,  1897),  37  S.  W.  R.  .583;  Scott  v. 
I'.-rkins,  28  Me.  22,  35;  Parks  v.  Am. 
il.  .M.  Soc.,  20  Atl.  R.  107  (Vt,  1897); 


sell  or  mortgage  the  fee.  Jeslin  v. 
Rhodes,  150  Ma.ss.  301,  23  N.  E.  R.  42; 
Fink  V.  Leisman  (Ky.),  39  S.  W.  R.  6; 
C'oates  V.  Railroad  ('o.,  92  Ky.  263,  17 
S.  W.  R.  .564;  Sartliout  v.  Reiiier,  67 
Hun,  241,  23  N.  Y.  S.  198.     He  mav 


.lones  V.  Denning,  9  Mick  481;  Mar-    use  the  proceeds  for  whatever  pur- 


for!  V.  Dietrenhach.  .54  .Mich.  605; 
.Miiiot  V.  l^rescott,  14  .Ma.ss.  496;  Wiiit- 
•  oiril)  V.  Tfiylor,  122  Mans.  243.  2IH; 
lljinifortli  V.  I{;irnfortli,  123  Mass. 
:."«).  -jxa;  Stevens  v.  WiiiHhip,  1  Pick. 
fMasH.)  317,  31H;  .lohiiwjn  v.  Ballelie. 
125  M:tH.s.  45.'',  451;  Ijirned  v.  Uri'lgr, 
17  Pick.  (.Mhks.)  3.30;  Smith  v.  Show. 
I2:i  Mawi.  'i'iH,  334;  Cutting  v.  Cutting, 


pose  lie  lias  Iku'II  diret-ted  to  use  them 
by  the  tes(ati)r,  hut  wlialever  he  has 
not  thus  used,  at  ids  driith,  goes  not 
to  Ids  ne.vt  of  kin,  luit  to  the  remain- 
der-men. In  re  liliiuvelt's  Kst.ite,  2 
Con.  Sur.  45H,  L'O  N.  Y.  Supp.  119. 
When-,  uiidiT  the  will  and  (.•odicil, 
tii<'  widow  took  a  life  est.it",  with  an 
uniniiiti'd  jm)W(t  to  di>|M»He  of  any 


044 


LAW    OF    WILLS. 


[§  688. 


§  G88.  A  life  estate  witli  power  of  appoiiitineut  by  will. — 

A  devise  of  a  life  interest  in  express  terms,  cou})lcd  with  a 
power  in  tlie  life  tenant  to  dispose  of  the  fee  sim})lo  in  the 
property  by  his  will,  either  absolutel}'  and  at  his  full  discretion 
among  a  class  of  objects  to  bo  selected  by  him,  or  among  a 
class  of  objects  pointed  out  by  the  testator,  gives  the  first  taker 
a  life  estate  only,  but  with  a  power  to  appoint  the  fee  simple 
by  his  will.^ 


portion  of  it  "  for  her  benefit,  so  far 
asslie  may  deem  necessary,"  she  was 
the  al)sohite  judge  of  the  necessity; 
but  this  power  of  disposal  must,  be- 
cause of  the  provision  in  the  will,  be 
exercised  during  the  enjoyment  of 
the  life  estate,  except  to  the  extent 
of  the  payment  of  debts  owing  by 
the  life  tenant  at  the  time  of  her 
death,  and  her  funeral  expenses. 
Small  V.  Thompson,  43  Atl.  R.  509,  93 
Me.  539.  Wliere  the  devisee  is  per- 
mitted to  use  as  much  of  tiie  princi- 
pal as  may  be  necessarj'  for  his  ex- 
penses, he  may  use  the  entire  amount 
if  in  his  judgment  it  becomes  neces- 
sary. McCarty  v.  Fish,  87  Midi.  48, 
49  N.  W.  R.  513.  And  if  the  power 
of  disposal  is  merely  a  general  power, 
not  evincing  an  intention  to  confer 
the  power  to  use  the  proceeds  of  the 
sale  for  support,  the  life  tenant  has 
the  power  of  disposal  by  sale  or 
pledge,  and  of  re-investing  the  pro- 
ceeds in  new  securities.  Glover  v. 
Stillson,  56  Conn.  316,  15  Atl.  R.  752; 
Trimble's  Ex'x  v.  Lebus,  94  Ky.  304, 
22  S.  W.  R.  329. 

1  Clu-isty  V.  Ogle,  33  III.  (1864),  295; 
Wood  v.  Robinson,  113  Ind.  323,  324; 
Crew  V.  Dixon,  129  Ind.  85,  89;  Mor- 
gan V.  Halsey,  97  Ky.  789,  31  S.  W.  R. 
866;  Degman  v.  Degman  (Ky.,  1896), 
34  S.  W.  R.  523:  Payne  v.  Johnson 
Heirs,  95  Ky.  165  (1894),  24  S.  W.  R. 
238,  id.  609;  Ernest  v.  Foster  (Kan., 
1897),  49  Pac.  R.  527;  Albert  v.  Albert, 
68  Md.  352  (1887),  12  Atl.  R.  11 :  Franke 
T.  Auerbach,  72  Md.  (1890),  580.  29  Atl. 
E.  129;  Collins  v.  Wick  wire,  38  N.  E. 


R.  365,  163  Mass.  145;  Todd  v.  Sawyer, 
147  Mass.  570,  17  N.  E.  R.  527;  Plielps 
V.  Plielps.  143  I\Iass.  570.  10  N.  E.  R. 
452;  Senfert  v.  Ilensler,  52  N.  J.  Eq. 
754, 29  Atl.  R.  202;  In  re  Gardner,  140 
N.  Y.  123,  35  N.  E.  R  439,  23  N.  Y. 
Supp.  429;  Forsythe  v.  Forsythe,  108 
Pa.  St.  129;  Dillon  v.  Faloon,  158  Pa. 
St.  468,  27  Atl.  R.  1082;  In  re  Levy's 
Estate.  25  Atl.  R.  1068, 153  Pa.  St.  174, 
31  W.  N.  C.  539;  Long  v.  Waldraven, 
18  S.  E.  R.  251,  113  N.  O.  337;  Sires  v. 
Sires,  43  S.  C.  266,  21  S.  E.  R.  115; 
Hood  v.  Haddon,  82  Va.  588.  The  tes- 
tator devised  his  farm  to  his  wife, 
during  her  life,  for  a  home  for  her 
and  children,  and  provided  that  if 
she  should  die  before  tlie  youngest 
child  readied  its  majority  it  sliould 
not  be  sold  until  then,  and  that  it 
then  be  sold  and  the  proceeds  divided 
equally  between  the  children.  Held, 
tliat  the  widow  took  a  life  estate 
which  she  might  alienate,  and  which 
estate  was  not  conditioned  on  her  oc- 
cupancy of  the  farm  as  her  home. 
Talbott  V.  Schneider,  52  S.  W.  R.  203. 
A  devise  in  these  words:  "  I  give  and 
devise  unto  my  wife"  certain  de- 
scribed land,  "to  hold,  to  her  and 
her  assigns,  for  and  during  her  natu- 
ral life,  she  paying  the  taxes  thereof 
and  keeping  the  buildings  in  repair; 
the  aforesaid  land  to  be  disposed  of 
at  the  pleasure  of  my  beloved  wife 
at  her  death,"  —  gives  the  wife  the 
power  to  devise  the  fee.  Forsythe  v. 
Forsytlie,  108  Pa.  St.  129,  followed. 
Dillon  V.  Faloon,  27  AtL  R.  1083,  158 
Pa.  St.  468. 


§  6S9.]  CKEATIOX    OF    ESTATES    IX   FEE.  0-15 

The  power  to  appoint  by  will  must  be  executed  in  accord- 
ance with  the  directions  of  the  testator.  It  does  not,  in  the 
absence  of  statute,  enlarge  a  life  estate  given  in  express  terms 
to  an  estate  in  fee  simple.  The  life  tenant  having  a  power  to 
devise  has  no  power  thereby  to  convey  by  instrument  inter 
vivos;  ^  nor  will  the  heirs  or  next  of  kin  of  the  life  tenant,  hav- 
ing a  power  of  appointment  by  will,  take  by  descent  or  by 
devolution  from  their  ancestor  in  case  he  shall  have  died  with- 
out having  executed  the  power.  The  power  to  appoint  by  will 
must  be  executed  among  the  class  of  objects  selected  by  the 
first  testator,  and  in  default  of  a  valid  appointment  the  fee  will 
pass  to  the  residuary  devisee;  or  if,  as  is  usually  the  case,  the 
donee  of  the  power  is  also  the  residuary  devisee,  then  the  fee 
will  pass  to  the  heirs  of  the  testator,-  or  to  the  persons  to  whom 
it  has  been  devised  by  him  in  fault  of  an  appointment.' 

§  680.  A  devise  in  fee  simple  not  cut  down  by  a  devise 
over  of  '^  wliat  remains." — It  is  the  rule  that  where  property 
is  given  in  clear  language  sufficient  to  convey  an  absolute  fee,  the 
interest  thus  given  shall  not  be  taken  away,  cut  down  or  di- 
minished by  any  subsequent  vague  and  general  expressions.* 
This  rule  is  applied  where  a  fee  is  given  either  ex})ressly  by 
words  of  limitation,  as  to  a  person  and  his  he//:,',  or  bj' implica- 
tion by  a  devise  in  general  language  through  the  operation  of 
the  modern  statutes.  If  it  is  clearly  the  intention  of  the  tes- 
tator that  the  devisee  shall  own  the  fee  simj>le,  his  subsequent 

'  See  poHt,  §  800.  him  tlie  absolute  power  of  disposal 

'•^Seiifert  v.  Hensler,  52  N.  J.  Eq.  and  to  create  in  him  a  fee  siinplo 

754,  29  Atl.  R.  202.  wJiich  descends  to  his  Iieirs  on  his 

'Crew  V.  Dixon,  129  Ind.  85,  89;  death  intestate.     In  re  Moohring,  48 

Payno  v.  Jolinson's  Iloirs,  95  Ky.  105,  N.  E.  R  818,  154  N.  Y.  42.'J;  Dcegan 

24  8.  \V.  I{.  009;  Mcjrgan  v.  IIalscy,97  v.  Wade,  39  N.  E.  R.  092.  144  N.  Y. 

Ky.  789,  :jl   S.  W.  H.  800;  Collins  v.  57:5,  20  N.  Y.  Supp.  898.  75  liun.  :i9. 

Wickwire,  102  Mass.  143,  38  N.  K.  K.  .S<-o/w.s/,  §  798.     In  Ahibania  (hy  the 

305;  In  ro  (Jardiicr,  35  N.  R  R  439,  Code,  §  1852).  an  absolute  jM^wer  of 

110  N.  Y.  122;  Kibler  v.  Iluver,   10  disposal  given  to  the  owner  of  an  es- 

N.  Y.  Supp.  375;  Log  v.  Waldrave,  18  tato,  unaccompanied  by  any  trust  or 

8.  E.  U.  251,  113  N.  C.  337;  Sires  v.  a  power  to  devise  tlio  iniu'ritance, 

Sires.  21  S.   H  R.   115,  43  S.  C.  200;  will  give  him  tiie  fee.    Hood  v.  Hram- 

Rusk  V.  Zuck  (Ind.,  1H!)7),  40  N.  E.  \{.  lett,  105  Ala.  000,  17  S.  It.   105.    Sco 

074.    iJy  hUtute  in  New  York  (1  R.  S.,  also  (Jilford  v.  Choale,  100  Mass.  343, 

p.  733,  i  34),  it  is  pnjvidcd  that  a  gen-  310. 
<!nil  i>ower  to  devise,  given  to  a  life        *  See  g  358. 
tenant,  sliall  Ije  deemed  to  convey  to 
60 


040  LAW    OF   WILLS.  [§  GS9. 

language  directing  that  what  remains  of  the  property  at  the 
death  of  that  devisee  shall  devolve  upon  a  particular  person, 
or  class  of  persons,  will  not  cut  doAvn  the  fee  to  a  life  estate. 
The  fee,  being  vested  by  express  and  appropriate  words,  will 
not  be  diminished  by  subsequent  words  of  a  vague  and  gen- 
eral character  which  are  absolutely  repugnant  ^  to  the  estate 
granted.-  Thus,  a  gift  absolutely  to  A.  "  with  all  the  power 
and  rights  that  the  testator  enjoyed,"  with  a  direction  that  he 
should  make  a  will  leaving  what  remains  of  the  property  at  his 
death  to  certain  persons  named,'  or  a  direction  that  certain 
legacies  are  to  be  paid,  after  the  death  of  the  devisee^  out  of 
the  proceeds  of  the  land,  which  is  devised  absolutely ;  '*  that  cer- 
tain property  absolutely  bequeathed  should  on  the  death  of 
the  devisee  go  to  his  children ;  ^  or  a  gift  to  A.  \\\i\\  fall  power  to 
alienate,  convert  or  dispose  of,  and  upon  his  death  as  much  of  it 
as  remains  to  his  children,^  does  not  diminish  the  estate  given 
in  fee  to  a  life  estate.^ 

While  it  is  true  that  a  gift  over  of  "  what  remains  "  unex- 
pended, coming  after  a  gift  of  the  fee  created  in  clear  lan- 
guage, will  not  reduce  the  devise  of  the  fee  to  a  life  estate,  and 
will  be  rejected  from  the  will,  yet  the  testator  is  not  prevented 
from  making  a  valid  gift  of  what  remains  after  use  by  the 

1  Ante.  %  361.  *  Hovey  v.   Walbank,  34  Pac.  R. 

2  Browning  v.  Southworth  (Conn.,    650.  100  Cal.  192. 

1898),  41  Atl.  R.  768:  Trustees  v.  Har-  »  Hall  v.  Palmer,  87  Va.  354,  12  S. 
ris,  62  Conn.  93,26  Atl.  R.  456;  Halla-  E.  R.  618;  Judevine's  Ex'rs  v.  Jude- 
day  V.  Strickler,  43  N.  W.  R.  228,  78  vine,  61  Vt.  587,  18  Atl.  R.  778.  A 
Iowa  (1889),  388;  Jones  v.  Bacon,  68  devise  to  the  children  of  the  testa- 
Me.  34;  Stuart  v.  Walker,  72  Me.  145;  tor,  coming  after  a  gift  of  land  to 
Mitchell  V.  Reed,  77  Me.  423,  425,  1  his  wife  and  her  heirs,  is  void  as  a 
AtL  R  141 ;  Taylor  v.  Brown,  88  Me.  remainder  because  of  the  preceding 
56.  57;  Foster  v.  Smith.  31  N.  E.  R.  fee:  and  as  an  executory  devise,  be 
291,  156  Mass.  (1892),  379;  Veeder  v.  cause  it  is  repugnant  to  the  unlim 
Meader,  157  Mass.  413, 32  N.  E.  R  358;  ited  power  of  disposal.  Wolfer  v. 
Benz  V.  Fabian  (N.  J.  Eq.,  1897),  35  Hemmer,  144  IlL  554,  33  N.  E.  R  751 
AtL  R  760;  In  re  Haskeirs  Estate,  e  McClellan  v.  Larchar,  16  Atl.  R 
43  N.  Y.  Supp.  1144;  Myers  v.  Bentz,  269,  45  N.  J.  Eq.  17. 
127  Pa.  St.  222  (1889),  17  Atl.  R.  899;  'A  devise  to  A.  and  his  heirs  con- 
Boyle  V.  Boyle,  25  Atl.  R  494, 152  Pa.  fers  an  absolute  estate  upon  A.;  and 
St.  108,  31  W.  N.  C.  453;  Bibbens  v.  an  executory  devise  over  on  his  not 
Potter,  L.  R  10  Ch.  D.  733.  disposing  of  the  same  by  will  is  void. 

3  Good  V.  Miller,  22  AtL  R  1032  Combs  v.  Combs,  67  Md.  11.  8  Atl.  R. 
(1891),  144  Pa.  St.  287.  757;  Rea  v.  Bell,  147  Pa.  St.  118. 


§   GOO.]  CREATION    OF    ESTATES    IN    FEE.  9.1:7 

first  taker.^  If  from  the  will  it  clearly  appears  that  the  tes- 
tator intended  that  the  fii'st  taker  is  to  have  a  fee  simple,  with 
a  full  power  of  disposition,  in  any  and  every  event  and  for  all 
jyurposes,  to  the  same  extent  as  he  would  have  himself,  a  de- 
vise over  of  "  what  remains "  is  invalid.  If,  however,  the 
devise  to  the  first  taker  is  a  life  estate  in  express  words,  with 
a  power  of  disposing  of  the  fee  for  a  particidar  pwpose  only, 
as  for  the  siq?port  and  maintenance  of  the  life  tenant,  or  for  the 
care  and  education  of  his  children,  a  devise  over  of  "  what  re- 
mains "  after  his  death  is  valid,  though  it  is  liable  to  be  dis- 
appointed by  the  exercise  of  the  power  of  sale  by  the  life  tenant, 
and  the  application  of  the  proceeds  to  the  purposes  indicated. 
Here  the  power  of  sale  for  a  particular  purpose  attached  to  a 
life  estate  does  not  of  necessity  enlarge  it  to  a  fee  simple,  and 
consequently  there  is  no  repugnancy  in  giving  what  remains 
to  others  in  fee.- 

§  GOO.  The  effect  of  a  devise  over  on  death  during  minority 
in  creating  a  fee. —  AVhere  an  estate  is  given  to  a  person  in 
indeterminate  language,  with  a  gift  over  in  the  case  of  his 
death  under  the  age  of  twenty-one  years,''  and  the  fee  is  not 
expressly  disposed  of  in  the  event  of  his  attaining  majority, 
the  testator  will  be  presumed  to  have  intended  to  give  him  a 
fee  simple  in  the  event  of  his  surviving  to  that  age.*  So,  also, 
is  this  the  case  where  the  devise  is  to  a  person,  and  if  he  shall 
die  under  age  and  without  leaving  issue  living  at  his  decease, 
then  to  another  person  in  fee.  Even  where  the  devise  over 
which  is  to  take  effect  u{)on  the  death  of  a  ])ri()r  devisee  is  of 
an  estate  i'or  life  only,  the  same  rule  has  been  ap])lied,'  by 
which  on  the  attainiiit;nt  of  ma  jority  a  fee  simple  is  vested, 
though  oln'iously  the  a|)|)li('ation  of  tlio  ruh)  to  such  a  limita- 
tion is  not  so  appari'iit  as  in  the  case  of  a  gift  over  of  the  foe. 

'  See  ante.  %  687.  of  llif  rcsidiio  at  Iwr  decease  l)y  tlio 
2P«'lli/,z;irro  v.  Rcppcrt,  8.'J  Iowa,  tt'stator  i.s  Vdiil  IVir  ic|m;^iiaiicy. 
4»7,  50  N.  \V.  R.  v.):  Jidwze  v.  Bar-  'Sch  oases  f »/(/«•.  |^  KIT. 
ber,  25)  S.  C.  UUi,  7  S.  E.  \i.  H17;  Hia<l-  *  Do*,  v.  ("mi.lall,  !»  Kast.  100;  Mar- 
ley  v.  Carri.-H,  IM  Timmi.  27,  27  S.  W.  IL  shall  V.  Hill.  L'  Maul.!  \.  .S».l.  (WIS; 
1007;  MrMurniy  v.  StaiiU-y.  Ot>  T(«x.  Biirkn  v.  Aiiiiis.  11  Haiv,  2:52;  llani- 
227,  fi  H.  \V.  K.  112.  A  dovis*)  to  A.  son's  Kstatc,  L.  1{.  oCh.  loM;  Maldiiav. 
for  liff.  tnistiiiK  that  sho  will  give  SchwiiiK  (Ky.,  1H1)7),  :ilt  S.  W.  I{.  r»2:{. 
the  nrsidu*' to  certain  p<'rsoiiH,  Rives  '"^  Fri)^jm<irtoii  v.  HulytJay,  U  lUirr. 
her  au  uhtKjluto  fee,  ami  tho  duviso  1C1«,  1  Will.  IJI.  5^5. 


OlS  LAW    OF   "WILLS.  [§  G91. 

But  the  rule  docs  not  apply  to  a  devise  over  of  the  fee  to  take 
place  upon  the  happening  of  an  event  which  is  in  no  wise  corv- 
nected  with  the  jyrior  devisee}  On  the  other  hnnd,  where  an 
estate  is  devised  in  express  words  conferring  the  fee,  with  a 
limitation  over  of  an  interest  in  indeterminate  language  to  an- 
other person,  upon  the  death  of  tlie  first  tenant  without  issue 
or  under  the  age  of  twenty-one,  the  common-law  rule  apj)lies 
to  the  estate  over.  The  fact  that  the  first  devise  is  a  fee  simple, 
and  that  it  is  to  be  defeated  upon  a  contingency,  will  not  be  a 
sufficient  indication  that  the  testator  wished  the  devisee  over, 
to  whom  a  gift  in  vague  language  is  given,  to  take  the  fee  upon 
the  happening  of  that  contingent  event.^ 

§601.  Gilts  for  life  of  consumable  articles. —  A  gift  for 
life  of  articles  which  are  perishable,  or  which  are  consumed  if 
they  are  properly  used,  gives  the  absolute  title  to  them  to  the 
life  tenant,  and  no  limitation  over  of  the  property  given,  or  of 
what  remains  at  the  death  of  the  life  tenant,  is  valid,'  Thus, 
for  example,  where  the  testator  makes  a  specific  gift  of  the 
furniture*  in  his  house,  the  provisions  or  wine  in  his  cellar, 
the  hay  and  grain  on  his  farm,  or  the  like,  for  the  life  of  a  per- 
son, that  person  takes  the  absolute  title.  But  if  the  bequest 
includes  onh^  wine  or  provisions,'^  or  fodder®  for  cattle  on  a 

iRoe  V.  Blacket,  Cowp.  235;   Pol-  N.  Y.   S.  109;   In  re  Williamson,  9 

lard's  Estate,  3  De  Gex,  Jo.  &  Smith,  N.  Y.  S.  470,  1  Con.  Sur.  139;   ]\Iark- 

54  ley's  Sup.,  132  Pa.  St.  352,  25  W.  N. 

2 Doe  V.  Holmes,  2  Wils.  80;  Harri-  C.  521,  19  AtL  R.  138  (farming  uten- 

son's  Estate,  L.  R.  5  Ch.  408.  sils);    Robertson  v.   Hardy's  Adm'r 

3  In  re   Cashman's  Estate,  28  IlL  (Va.),  23  S.  E.  R.  706;  Lini'nger's  Ap- 

App.  (1888).  346;  Sheets  v.  Wetzel.  39  peal,  1  Atl.  R.  722  (1885),  110  Pa.  St. 

III.  App.  600;   Pritchard  v.  Walker,  398;  Messinger's  Appeal,  19  Atl.  R. 

121  111.  221  (1887),  12  N.  E.  R.  336;  485.  133  Pa.  St.  495  (crops,  live-stock, 

Wilson  V.  Turner  (111.,  1897),  45  N.  E.  etc.);  In  re  Heck's  Estate,  107  Pa.  St 

R.   820;    In    re    Burbank,    69    Iowa  232  (1884),  32  Atl.  R.  4i:];  Randall  v. 

(1886),  378,  381;  Earth  v.  Barth  (Ky.),  Russell,  3  Mer.  195;  Andrew  v.  An- 

38  S.  W.  R.  511;  Whittemore  v.  Rus-  drew,   1   Coll.   690,  691;   Twining  v. 

sell,  80  Me.  (1891),  297,  300,  14  Atl.  R  Powell,  2  Coll.  262. 

197;   Fuller  v.  Fuller,  84  Me.  (1892),  *  Furniture  and   similar  personal 

47.5,  482,  24  Atl.  R.  946;   Collins  v.  property  given  to  a  person  for  life 

Wick  wire,  162  Mass.  143,  144;  Rouns-  should  be  delivered  to  him  by  the 

dell  V.  Rounsdell,  21  Me.  (1842).  288,  executor.     Fuller  v.  Fuller,  84  Me. 

293;   Kelly  v.  Meigs,  135  Mas.s.  231,  475,  24  Atl.  R.  946. 

235;    Knight  v.   Knight,   162  Mass.  5  Phillips  v.  Beal,  32  Beav.  25. 

460,  461,  38  N.  K  R.  1131;  Marston  v.  6  Cockayne  v.  Harrison,  L.  R.  13 

Carter,  12  N.   H.  (1841),  159:   In  re  Eq.  432. 
Maack's  Estate,  13  Misc.  R.  368,  35 


§  602.] 


CKEATIOX   OF   ESTATES    IN   FEE. 


949 


farm,^  "which  is  carried  on  for  raising  stock  as  a  business,  the 
rule  does  not  apply,  and  the  first  taker  has  a  life  estate  only. 
If,  however,  the  testator  has  expressly  indicated  that  the  life 
talker  shall  not  Ic  Halle  for  property  consumed,  he  will  be  abso- 
lutely entitled  even  to  a  stock  in  trade,  though  it  is  given  for 
his  life  only.2 

§  60'2.  A  bequest  of  the  reuts  and  profits  of  laud  carries 
the  laud. —  A  gift  to  A.  of  the  rents,  issues  aiid  profits  of  land, 
or  its  net  income,  if  there  is  no  disposition  of  the  land  itself, 
has  always  been  regarded  as  a  devise  of  the  land,  both  at  law 
and  in  equity.  If  the  income  of  the  land  is  given  expressly  for 
life,  or  for  years,  or  to  A.  and  his  heirs,  he  or  they  take  an 
estate  in  the  land  of  precisely  the  same  duration.^  At  the  com- 


1  Breton  r.  Mockett,  L.  R.  9  Ch.  Oo; 
Groves  v.  Wright,  2  Kay  &  J.  347. 

2  Breton  v.  Mockett,  L.  R.  9  Ch.  95. 
See  Bryant  v.  Easterson,  5  Jurist 
(N.  S.  1, 1G6.  See  also  as  to  enjoyment 
in  specie,  ante,  §  434 

••The  expression  'for  liis  use  during 
liis  natural  life,'  employed  in  creat- 
ing a  life  estate,  is  of  considerable 
force  in  determining  the  question 
whetlier  the  life  tenant  possesses  a 
jKjwer  of  alienating  the  fee.  The  use 
of  real  ])roperty  during  the  life-time 
of  the  tenant  does  not  of  necessity 
consume  it,  if  it  is  used  with  ordinary 
care.  The  reverse  is  the  case  with 
|>ersonal  projierty.  particularly  that 
which  is  of  a  perishable  nature,  such 
as  cattle,  food,  farming  implements, 
furniture,  etc.  Ilunce  when  a  tes- 
tator shall  lj<>queath  the  ase  of  per- 
Honul  pro|K,'rly  to  one  for  life,  witli  a 
provisifni  tiiat  whatever  romains  at 
the  death  of  tin;  lif(!  t«'nant  shall  go 
over,  it  is  reasonable  U>  sup|M)sc  that, 
knowing  the  chara<Tt«^r  <»f  the  prop- 
frty  di«iK-»Hed  of,  he  inU.*nih!d  to  \h-v 
mit  the  life  tenant  to  consume'  for 
her  UHc  aH  much  as  slu*  may  licMiro 
during  her  lift;,  and  tliat  only  Kudi 
property  UH  was  not  worn  out,  lost, 
••onsuineil  or  destroyed  was  to  gf»  to 
the  remaindermen."  Goudic  v..J<)hri.s- 


ton,  109  Ind.  427,  4-31;  Giles  v.  Little, 
104  U.  S.  291;  Greeu  v.  Hewitt,  97 
111.  113. 

3  Bristol  V.  Bristol,  53  Conn.  259 
(1S85);  Lorton  v.  Woodward,  5  Del. 
Ch.  505;  Turner  v.  Kilpatrick,  77  Ga. 
749  (1886),  3  S.  E.  R.  246;  Ryan  v. 
Allen,  120  111.  C48  (1887),  12  N.  E.  R. 
65;  Thompson  v.  ^lurplij',  10  Ind.  App. 
464:  Peale  v.  Wliite.  7  La.  Ann.  (1852), 
440:  Andrews  v.  Boyd,  5  Me.  199; 
Earl  V.  Rowe,  35  j\Ie.  414.  419;  Stone 
v.  North,  41  ]Me.  265,  271 ;  Butterfield 
V.  Haskins.  33  Me.  392,  393;  Fuller  v. 
Fuller,  84  Me.  475, 479,  24  Atl.  R.  946; 
Hopkins  v.  Keazer,  89  Me.  347,  354: 
Paine  v.  Forsaitii,  86  I\Ie.  357,  361,  30 
Atl.  R.  11:  Dascomb  V.Martin.  80  Me. 
2-23,  231,  13  Atl.  R.  888:  Reed  v.  Reed, 
9  Mass.  (1812),  372;  Johnson  v.  S.  D. 
Company,  79  Md.  18,  28  Atl.  R.  H'.IO; 
Palms  V.  Palms,  6H  .Mich.  355;  .MMndlc- 
liaum  V.  McDonell,  29  Mich.  7H.  84; 
Oaft  V.  Snook,  13  N.  J.  Va{.  121:  Dia- 
mant  v.  Lan;,  31  N.  J.  K  (1860),  'J(»0; 
Bishop  V.  McClelland,  44  N.  J.  L.  450, 
16  .\tl.  R.  1:  Ilarston  v.  KMer.  50  N. 
J.  Va\.  .522,  52.5.  26  Atl.  R.  5(il ;  ( Jullick 
v.  (iullick,  25  N.  J.  Kq.  321;  Passman 
v.  Company  (N.  J.  Va\.\  11  All.  K.  953; 
Lip|)incott  V.  Pancoast,  47  N.  .J.  K(|, 
26.  26  Atl.  H.  360;  Patterson  v.  Kills, 
11  W.-nd.  (N.  Y.,  1833),  260;  Smith  v. 


950  LAW   OF   WILLS.  [§  692. 

iiion  law  a  deviso  of  tlie  rents,  issues  and  pi'olits  of  laud,  in  in- 
determinate language  Avithout  words  of  inheritance,  gave  a 
life  estate  only  in  the  land.^  But  now  by  statute  such  a  gift 
carries  the  testator's  whole  interest,  even  in  the  absence  of 
words  of  inheritance.-  So  generally  it  is  the  rule  that  by  an 
indefinite  bequest  of  the  income  of  the  fund  of  personal  prop- 
erty an  absolute  title  to  the  personal  property  passes  to  the 
devisee.' 

But  the  rule  that  a  gift  of  the  interest  of  the  fund  or  of  the 
income  of  the  land  is  a  gift  of  the  fund  or  of  the  land  itself  is 
only  applicable  if  the  testatm^  has  not  expressly  or  by  implication 
disposed  of  the  corpus  in  some  other  v:ay.  The  presumption  that 
he  intended  the  legatee  of  the  income  to  take  the  corpus^^  by 
giving  him  the  interest,  is  not  conclusive,  and  may  be  rebutted 
by  evidence  appearing  on  the  will.  Thus,  if  the  testator,  after 
giving  the  income  or  issues  and  profits  of  land  to  one  for  life, 
provides  that,  on  his  death,  it  shall  go  to  others;  or  if,  giving 
the  income  in  fee,  he  devises  it  over  on  the  contingency  of  the 
death  of  the  devisee  without  issue,  the  presumption  is  over- 
come.* A  devise  of  ground  rent  by  the  testator,  who  owns  the 
reversion  out  of  which  the  ground  rent  issues,  it  has  anciently 

Post,  2  Edw.  Ch.  (N.  Y.)  583:  Hatch  v.  Mannox  v.  Greener.  L.  R.  14  Eq.  450; 
Bassett,  53  N.  Y.  359,  361 ;  In  re  Hoj-fs  and  see  cases  cited  in  note  3,  p.  949. 
Will,  11  N.  Y.  S.  901;  Earl  v.  Grim,  1  3Craft  v.  Snook,  13  N.  J.  Eq.  121; 
Johns.  Ch.  (X.  Y.)  494,  498;  Craig  v.  Mason  v.  Trustees,  27  N.  J.  Eq.  47; 
Craig,  3  Barb.  Ch.  (N.  Y.,  1848),  76;  Earl  v.  Grim,  1  Jolms.  Ch.  (N.  Y.)494, 
Thornton  v.  Stanley  (Ohio,  1898),  45  N.  495 ;  Thornton  v.  Stanley  (Ohio,  1898). 
E.  R318;  Sproul's  Appeal,  105  Pa.  St.  45  N.  E.  R.  318;  Garret  v.  Rex,  6 
441;  Silknitter's  Appeal,  45  Pa.  St.  Watts  (Pa.),  14;  Van  Rensselaer  v. 
365;  Drusadow  v.  Wilde,  63  Pa.  St.  Dunkin.  24  Pa.  St.  252;  Humphrey  v. 
170;  France's  Estate,  75  Pa.  St.  (1874),  Humphrey.  1  Sim.  (N.  S.)  536;  Wat- 
220.  224;  Bradford  v.  Bradford,  6  kins  v.  Weston,  32  Beav.  238,  3  De 
Whart.  (Pa.)  241,  244;  Willard's  Ap-  Gex.  J.  &  S.  433. 
peal.  87  Pa.  St.  457:  Appeal  of  Pennsyl-  •*  Which  is  based  on  feudal  reasons, 
vania  Co..  83  Pa.  St.  312;  Bowen  v.  2  D..  M.  &  G.  781. 
Pay  ton,  14  R.  L  257;  Rhodes  v.  Rhodes,  5  Dorr  v.  Wainwriglit,  13  Pick.  (30 
98  Tenn.  637.  13  S.  W.  R.  590;  Day  v.  Mass.,  1833),  328,  329;  Read  v.  Head,  6 
Williams,  1  Pickle,  646,  4  S.  W.  R.  8;  Allen  (88  Ma.ss.,  1863),  395;  Saunder- 
Paramour  v.  Yardley,  Plow.  .540;  4  son  v.  Stearns,  6  Mass.  37  (1816);  Par- 
Kent  Com.  536;  Co.  Litt.  46;  Parker  ker  v.  Moore,  25  N.  J.  Eq.  228;  Gid- 
V.  Plummer,  Cro.  El.  190;  South  v.  dings  v.  Seward,  16  N.  Y.  365;  Par- 
AUeine.  1  Salk.  228.  ker"s   Appeal,  61   Pa.  St.  (1869),  478; 

1  Hodson  V.  Ball,  14  Sim.  571.  Bently  v.  Kauffman,  80  Pa.  St.  99. 

■J  Plenty  v.  West,  6  Com.  Bench,  201 ; 


§  G93.]  CREATION    OF    ESTATES    IX    FEE.  951 

been  held,  carries  the  reversion.^  A  gift  of  the  free  use  or  the 
use  and  occupation  of  land  will  carry  the  interest  in  the  land. 
The  devisee  has  then  the  lenal  right  to  lease  it,  or  to  sell  it, 
and  is  not  usually  limited  to  the  personal  use  and  occupatioa 
■of  it.- 

ij  ()93.  Statutory  chancros  in  England  of  the  rule  which 
required  words  of  iulieritauce  to  pass  the  fee. —  The  fact  is 
indisputable  that  in  most  cases  the  intention  of  the  testator 
was  nullified  by  the  rule  of  the  common  law  that  a  devise  of 
lands,  tenements  and  hereditaments,  without  words  of  inherit- 
ance, conferred  an  estate  for  life  only.  As  a  consequence  of 
the  hardship  of  the  rule  it  was  ultimately  abolished  in  Eng- 
land by  statute  1  Yict.,  ch,  2G.  The  intention  of  the  testator, 
where  he  gives  an  interest  in  property  in  indeterminate  lan- 
guage, is  to  give  all  that  he  owns  himself;  and  to  construe 
such  words  as  creating  only  a  life  estate,  where  he  owns  the 
fee,  is  directly  contrary  to  his  intention.  Hence  it  was  enacted, 
by  section  28  that  where  "  real  estate  shall  be  devised  to  any 
person  without  any  words  of  limitation,  such  devise  shall  be 
construed  to  pass  the  fee  simple,  or  other  the  whole  estate  or 
interest  which  the  testator  had  power  to  dispose  of  by  will, 
unless  a  contrary  intention  shall  appear  from  the  will  itself." 
The  determination  whether  the  will  carries  the  fee  where  thero 
are  no  words  of  limitation  is  not  wh(jlly  set  at  rest  by  this  of 
the  similar  statutes  existing  in  the  United  States,  for  the  effect 
of  the  statute  is  merely  to  raise  a  presumption  of  an  intention 
contrary  to  that  which  existed  prior  to  their  passage.  The  old 
presumption  was  that  the  testator,  by  words  of  conveyance 
without  words  of  limitation,  intended  to  give  only  a  life  estate, 
which  presumption  was  rebuttable  by  showing  that  he  intended 
to  give  the  fee,  or  all  he  owned. 

The  presumption  is  now  the  other  way.  He  is  prcsunu'd  to 
intend  to  give  the  fee,  unless  a  contrary  intention  a]»pears  in 
his  will.  The  person  who  claims  that  the  testator  intended  to 
give  only  a  life  estate  is  under  the  necessity  of  showing  that 

'  Kf-rry  v.  lu-n'uk,  MfKire,  771,  Cro.  -Ctxtko   v.  fli-rnird,  1    S.uiiul.   isi, 

Jar.  101;  Miiun<ly  v.  Maundy,  U  Strn.  18«;  lialjlx-tli  v.  Sipiin-,  lU  Hcav.  70, 

10','"(;    ("as.    t<'inii.    Har<l\vick«s    14'J;  4  I>r  (m-x  &  J. -iKd;  .Maiinox  V.  (Jrue- 

Kay  V.  I^.xon,  1  Jiru.  (J.  (J.  70.  inT,  I^  It.  11  K^.  -I.'jO. 


952 


LAW    OF   -WILLS. 


[§  694. 


ho  (lid  so  intond,  and  if  he  cannot  do  this,  tlic  devise  will  carry 
all  the  interest  of  the  testator.  The  courts  are  not  inclined  to 
favor  the  restricted  construction  by  which  a  life  estate  is  cre- 
ated, and  there  would  have  to  be  a  very  plain  indication  of  an 
intention  to  that  effect. 

The  mere  fact  that  the  testator,  in  another  part  of  the  will, 
creates  a  fee  by  proper  language,^  is  not  enough  alone  to  show 
that  he  intends  to  create  a  life  estate  by  indefinite  language. 

§694.  Statutory  regulations  in  the  Ilnitecl  States. —  In 
very  many  states  of  the  American  Union  statutes  similar  in 
their  character  to  the  English  statute  above  mentioned  have 
been  enacted.  The  general  phraseology  of  these  statutes  is 
that  in  all  devises  where  the  word  "  heirs,''  or  other  words  of 
inheritance,  are  omitted,  the  whole  estate  of  the  testator  in  the 
premises  devised  shall  pass,  unless  it  clearly  shall  appear  in  the 
will  itself,  by  limitation  over  or  otherwise,  that  the  testator  in- 
tended to  devise  a  less  estate  than  a  fee.  This  is  the  rule  in 
Alabama,^  Illinois,^  Georgia,*  Indiana,^  lowa,^  Maryland,^  Massa- 
chusetts,^ Minnesota,^  Michigan,^''  Missouri,'^  Mississippi,^'-  Xe- 


1  Wisden  v.  Wisden,  2  Sm.  &  Gif. 
896. 

'i  Code,  §  2178. 

3  Coth.  Ann.  Stat.  310,  §  13;  McCon- 
nell  V.  Smith,  23  IlL  611;  Giles  v. 
Anslow,  21  X.  E.  R.  225,  128  IlL  187. 

*Code.  §§  2248.  2249. 

5R  S.  187G.  p.  864,  §  14;  Smith  v. 
Meiser,  51  Ind.  419;  Mills  v.  Franklin, 
128  Ind.  4-14;  McMahan  v.  Newcomer, 
82  Ind.  565,  568;  Mulvane  v.  Rude,  45 
N.  E.  R  659,  146  Ind.  476.  Thus,  a 
devise  to  a  wife  of  "  all  my  property, 
personal  and  real,  after  paying  my 
debts,"  gives  the  fee.  Ross  v.  Ross, 
135  Ind.  367,  35  K  E.  R.  9. 

«  Code,  art.  93,  i;,^  305,  314. 

7  Newton  v.  Griffith.  1  Harr.  &  G. 
Ill,  138.  By  a  devise  that  "  I  give  and 
bequeath  to  my  son  .  .  all  my 
property,  .  .  .  and,  in  case  he 
should  die  without  heir,  then"  to 
testators  brothers  and  sisters,  the 
son  took  an  estate  in  fee  simple. 
Benson  v.  Linthicum,  75  Md.  141,  23 


Atl.  R.  133;  Pennington  v.  Penning- 
ton, 17  Atl.  R.  329,  70  Md.  418. 

8  Pub.  St.,  ch.  127,  §  24. 

9  Stat,  at  Large,  ch.  35,  §  2. 

10  How.  Stat.,  §  5786.  Where  the 
first  clause  of  a  will  devises  an  estate 
in  fee,  without  words  of  limitation, 
and  the  other  clauses  burden  the  es- 
tate so  devised  with  a  trust  in  favor 
of  testator's  children,  the  devisee 
does  not  take  a  life  estate,  but  the 
fee,  subject  to  the  trust  imposed  on 
the  estate  devised;  How.  St.,  ^  5786, 
providing  that  any  devise  shall  be 
construed  to  convey  all  the  estate 
unless  it  shall  clearly  appear  that 
there  was  an  intention  to  convey  a 
less  estate.  Forbes  v.  Darling,  54  N. 
W.  R.  385,  94  Mich.  621;  Speirs  v. 
Roberts,  73  Mich.  666,  41  N.  W.  R. 
841. 

n  R.  S.  4004;  Cook  v.  Couch,  13  S. 
W.  R.  80,  100  Mo.  29. 

1-'  Code,  §  2285. 


§  694.] 


CREATION    OF    ESTATES    IX    FEE. 


953 


braska,^  Xew  Hampshire,-  Xow  Jersey,'  Xew  York,^  Xortb 
Carolina,'  Pennsylvania,^  Ehode  Island,^  South  Carolina,^  Ten- 
nessee,^ Texas,^"  Yermont,"  Yirginia'^  and  Wisconsin.^'  Hence,  it 
follows  where  these  statutes  are  in  force  that  the  word  "  heirs  " 
or  similar  words  of  limitation  or  inheritance  are  not  necessary 
to  convey  an  absolute  title  to  the  lands  when  devised  in  a  will.^^ 


1  At  common  law  a  devise  of  real 
estate,  in  order  to  convey  the  fee, 
must  contain  words  of  inheritance 
or  perpetuity;  but  under  the  Ne- 
braska statutes  such  words  are  not 
necessary,  and  every  devise  of  land 
is  to  be  construed  to  convey  all  of 
the  estate  of  the  devisor  tlierein, 
unless  it  shall  clearly  appear  by  the 
will  that  the  devisor  intended  to 
convey  a  less  estate.  Little  v.  Giles, 
41  N.  W.  R.  18G,  25  Xeb.  813. 

2  Burke  v.  Stiles,  65  N.  H.  163,  18 
Atl.  R,  657;  Cressy  v.  Wallace,  66 
N.  H.  566,  29  Atl.  R.  842. 

3  VoL  2,  Rev.  (1877),  p.  300,  g  13. 
MRS.,  art.  748,  §  1. 

5R  S.,  ch.  119,  g45. 

6  Act  Pa.  April  8,  1833,  §  9,  Pur- 
don's  D.,  p.  1475;  Lloyd  v.  Mitchell, 
130  Pa.  St.  205.  Tims,  a  devise  "  share 
and  share  alike"  simply  (White  v. 
Commonwealth,  1  Atl.  R.  33,  110  Pa 
St.  90);  or  of  one-half  tlie  land  I  pos- 
sess (Mclntyre  v.  31clntyre,  123  Pa. 
St  323, 23  W.  N.  C.  41, 16  Atl.  R.  783); 
or  she  shall  have  all  the  personal 
proi>erty  for  her  own  (Snider  v.  Baer, 
22  .Atl.  R  897,  144  Pa.  St.  278.  2.S  W. 
N.  C.  460j;  or  the  lands  shall  be  di- 
vided in  erpial  parts  (Coles  v.  Ayres, 
27  Atl.  R  375.  150  P;i.  St.  197);  or 
Kirnilar  lanj^uaj^e  (Schuldt  v.  Iler- 
birie,  3  Pa.  Sui»er.  Ct.  05,  39  W.  N.  C. 
290).  A  do\  is*'  to  t«-Ktator's  wife,  "  in 
lieu  of  dower,"  of  "  my  ijroscnt  resi- 
dence, with  the  lands  and  improve- 
inentH,"  fuiHses  to  the  wife  a  fee  him- 
pie,  where  there  is  no  (levi.se  over  or 
words  of  limitation,  und  the  will 
iniikeM  other  iM^pn-sts  to  the  wife 
and  to  testator's  childn*n,  and  \tr<h 
vidi-H  tliHt.  slioiild  the  wifi)  desire  t.<» 
quit  the  residence,  und  oell  the  Humo 


"  in  fee  simple,"  and  invest  the  pro- 
ceeds, she  should  have  power  to  do 
so  (Dilworth  v.  Gusky.  18  Atl.  R. 
899,  131  Pa.  St.  343;  Anders  v.  Ger- 
hard, 21  Atl.  R.  253,  140  Pa.  St.  153), 
carries  the  fea 

7  Gen.  St.,  ch.  171,  §  5;  Pierce  v. 
Simmons  (R  L),  19  Atl.  R  242. 

8R.  S..  ch.  86,  §  9:  Hall  v.  Good- 
win, 4  McCord  (S.  C),  442. 

9R.  S.,  S  2006:  Davis  v.  Williams, 
1  Pickle,  646,  4  S.  W.  R  8. 

10  R  S.,  art.  551;  May  v.  San  An- 
tonio &  A.  P.  Town-Site  Co.,  83  Tex. 
502,  18  S.  W.  R  959. 

"  Gen.  Stat.,  ch.  49,  §  3. 

12  Code,  ch.  112,  §  8.  The  fact  that 
the  testator,  at  the  close  of  the  will, 
says:  "Having  disposed  of  what  I 
have,"  and  in  another  part  speaks  of  a 
devise  to  his  son  as  "  his  portion  of  my 
estate,"  does  not  manifest  such  in- 
tention to  devise  his  wiiole  estate  a» 
to  warrant  construing  the  above 
clause  to  convey  a  fee  to  31.  Suther- 
land's Ex'rs  V.  Snydor.  84  Va.  880, 
6  S.  E.  R  480. 

J3  R  S.,ch.  97.  §  2;  Cheney  v.  Plumb, 
79  Wis.  002.  600. 

"Smith  v.  Greer,  G  S.  R  911,  88 
Ala.  414,  Saulsbury,  Ch.,  dissenting; 
Sliimer  v.  Mann,  99  Ind.  190.  192; 
n(x;hstedler  v.  Ilochstedler.  108  Ind. 
500,  509;  Allen  v.  Craft,  109  Ind.  476. 
479;  Ke.ldick  v.  Lord,  131  Ind.  33(5,30 
N.  E.  R  1085;  New  Kng.  Mort.  Co.  v. 
Bnice  (Ga..  1897),  26  .S.  E.  K.  81;  ^Uil- 
vane  v.  Knde,  MO  In<l.  176,  15  N.  E. 
R  659;  Wilkinson  v.  Chambers.  181 
Pa.  St.  437.  4 12.  37  .At).  H.  569;  Davis 
v.  WillianiH,  1  Pickle  (Tcnn.).  fllfl.  1 
.S.  \V.  R  8;  .M<(J«'e  v.  Hall.  1  .S.  E.  R 
711,  20  S.  C.  79;  Chnicy  v.  l'Iiimb,7D 
Wis.  602,  600. 


CHAPTER  XXXYL 


THE   DOCTRINE   OF  EQUITABLE  CONVERSION  IN  RELATION  TO 

WILLS. 


§  695.    The  definition  and  origin  of 
equitable  conversion. 

696.  Tlie  intention  of  the  testator 

to  effect  a  conversion. 

697.  A  power  of  sale  in  will  alone 

does  not  convert  —  The  di- 
rection to  sell  must  be  im- 
perative. 

698.  Direction  to  sell  land  for  the 

purpose  of  paying  debts  — 
When  it  converts. 

699.  Conversion  without  the  crea- 

tion of  an  express  trust  to 
selL 

700.  A  discretion  as  to  the  time 

and  the  place  of  sale  does 
not  prevent  a  constructive 
conversion. 

701.  Conversion  where  no  express 

power  of  sale  is  conferred. 
703.     The   date  at   which  a  con- 
structive conversion  takes 
place. 

703.  The  sale  of  land  after  the 

death  of  tlie  tenant  for  life. 

704.  Blending    proceeds    of  land 

with  personal  property  — 
The  effects  of. 

705.  Conversion  depending  upon 

a  contingency,  or  upon  the 
consent  or  request  of  a  leg- 
atee. 

706.  A  direction  to  sell  at  a  fixed 

price. 

707.  The  effect  of  an  option  to 

purchase  given  to  a  bene- 
ficiary. 

703.  Con  version  in  the  case  of  Ian  d 
contracted  to  be  sold  by  the 
testator. 

709.  Conversion  in  the  case  of  land 
contracted  to  be  bought  by 
the  testator. 


§710. 
711. 
713. 

713. 
714 
715. 

716. 
716a, 

717. 

718. 
719. 

730. 

731. 

733. 

733. 

734 
735a. 


Lands  devised  subject  to  an 
option  to  i)urcliase. 

Conversion  in  the  case  of  lan<l 
taken  for  public  u.se. 

Conversion  by  an  order  of 
court  of  land  belonging  to 
an  infant  or  a  lunatic. 

The  effects  of  a  constructive 
conversion. 

Dower  and  curtesy  in  projv 
erty  converted. 

The  failure  of  the  purpose  of 
a  conversion  —  Reconver- 
sion. 

Resulting  trust  for  the  bene- 
fit of  the  next  of  kin. 

The  nature  of  the  property 
,  in  which  a  reconversion  is 
had  for  the  benefit  of  the 
heir. 

Conflict  of  laws  in  relation  to 
equitable  conversion. 

Double  conversion  defined. 

Election  to  take  the  property 
unconverted. 

Who  may  elect  to  take  the 
property  unconverted. 

All  persons  at  interest  must 
concur  in  electing. 

When  an  election  must  be 
made. 

What  acts  constitute  an  elec- 
tion to  take  property  un- 
converted. 

Election  by  remaindermen 
to  take  property  uncon- 
verted. 

When  the  tenant  in  tail  may 
elect. 

No  constructive  conversion 
when  money  is  at  home. 


§  695.]  EQUITABLE    COXVEESION,  955 

§  695.  The  definitioii  and  oriiiin  of  the  doctrine  of  cqni- 
table  conversion.7— Conversion  has  been  defined  by  the  author- 
ities as  that  change  in  the  nature  of  property  by  which,  for 
certain  purposes,  real  property  is  regarded  in  equity  as  per- 
sonal property,  and  personal  as  real,  and  each  is  transmissible 
and  descendible  as  the  property  into  which  it  is  constructively 
converted.^  The  doctrines  of  the  constructive  conversion  and 
constructive  reconversion  of  property  are  exclusively  of  equita- 
ble origin.  The  English  chancellors,  by  reason  of  their  juris- 
diction of  trusts,  were  very  early  called  upon  to  adjudicate 
cases  in  which  a  testator  in  disposing  of  property,  or  a  parent 
in  making  or  in  agreeing  to  make  a  marriage  settlement  for 
his  child  and  her  family,  had  directed  that  land  which  was 
devised,  or  which  was  comprised  in  the  settlement,  should  be 
sold,  and  he  had  furthermore  directed  the  proceeds  to  l)e  de- 
voted to  a  particular  purpose;  or  a  testator  or  a  settlor  had 
directed  that  money  should  be  invested  in  lands  for  the  benefit 
of  a  beneficiarj"  under  the  will  or  the  settlement,  and  in  which, 
either  because  of  the  wilful  refusal  of  the  trustee  to  act,  or  be- 
cause of  his -delay  and  negligence  in  carrying  out  these  direc- 
tions, the  alteration  in  the  nature  of  the  propert}^  had  not  been 
effectfid,  in  consequence  of  which  the  intention  of  the  devisor 
or  of  the  settlor  was  in  imminent  danger  of  being  defeated. 
It  was  admitted  that  the  owner  of  the  property  might  change 
its  nature.  He  might  make  land  money,  and  money  land;  and 
what  he  miight  do  himself  he  could  do  through  another.  Nop 
would  a  court  of  equity  permit  the  negligence  or  the  dela}''  of 
the  trustee  to  prejudice  the  riglits  of  the  ])arti(\s  to  be  bene- 
fitfMJ,  who  had  undci-  tlicso  circumstances  no  I'l-incdy  at  law. 
Tlio  neglect  of  the  trustee  would  oft«'n  work  a  serious  injus- 
tice to  tlie  ben(.'ficiary.  TIm.s,  if  the  testator  devised  lands  in 
trust,  with  a  direction  that  tliey  should  be  at  once  sold  and  tlio 
proceeds  paid  to  A.,  and  the  sale  was  unreasonabl}'-  post|ioned 
until  after  A.  had  died,  his  or  her  next  of  kin,  who  would  havo 
received  the  money  if  the  <lir(H'tions  of  th(!  teslatoi*  iiad  b(»eu 
promptly  coniplieil  with,  would  l)e  (h-prived  of  it,  :ind  (hei 
trusU'e  could  then  at  law  convey  tlx^  legal  title  to  the  heir  of 
A.   who  may  have  been  a  dilfermt  ))erson  from  the  next  of 

'  lluwar.l  V.  iViiv.-v.  Ijs  m.  |;5(),  J.T), 


956 


LAW    OF    WILLS. 


[§  COS. 


lvin,an«l  A.'s  wiJow  coulil  also  claim  (lo\V(?r  in  the  land  nnsoUl. 
In  order,  therefore,  to  prevent  this  manifest  injustice  to  the 
cestui  que  trud  who  had  no  remedy  at  law,  and  to  carr}^  out 
the  intention  of  the  testator  or  settlor,  courts  of  equity  api)lied 
to  sucii  a  case  the  well  recognized  equitable  maxim  that  equity 
considers  that  to  have  been  done  which  ought  to  have  been 
done.  Upon  this  important  maxim  is  based  the  whole  doc- 
trine of  equitable  conversion.^ 

In  other  words,  as  was  remarked  by  Sir  Thomas  Sewell  -  in 
the  year  1777,  it  was  a  principle  w^ell  established  at  that  time, 
that  money  which  w^as  directed  to  be  emplo3^ed  in  the  pur- 
chase of  land,  and  land  which  was  directed  to  be  sold  and 
turned  into  money,  w^ill  be  considered  as  that  species  of  prop- 
erty into  which  they  are  respectively  directed  to  be  converted.-^ 


iSweetapple  v.  Bindon,  2  Vern. 
536;  Durour  v.  Motteux,  1  Ves.  320, 
1  Sim.  &  St.  293,  n. ;  Fletclier  v.  Ash- 
burner,  1  Bro.  C.  C.  497, 499;  1  White 
&  Tudor's  L.  C,  pt.  II.  968  et  seq.; 
Rankin  v.  Rankin,  36  111.  (1864),  293; 
Howard  v.  Peavey,  128  111.  430,  435; 
Roy  V.  Monroe,  47  X.  J.  Eq.  356;  Haw- 
ley  V.  James,  5  Paige  (N.  Y.),  318, 444; 
Moncrief  v.  Ross,  50  N.  Y.  (1872),  431; 
Burr  V.  Sim,  1  Whart.  (Pa.,  1835),  252, 
262;  Ford  v.  Ford,  70  Wis.  19,  47. 

2  In  Fletcher  v.  Ashburner,  1  Bro. 
C.  C.  497,  499. 

3  See  also  Wheldale  v.  Partridge, 
6  Ves.  388,  396, 8  Ves.  226,  236.  "  The 
forbearance  of  the  trustees  in  not 
doing  what  was  their  duty  and  office 
to  have  done  shall  in  no  sort  preju- 
dice the  cestui  que  trust,  since  at 
that  rate  it  would  be  in  the  power  of 
trustees,  either  by  doing  or  delaying 
to  do  their  duty,  to  affect  the  rights 
of  other  persons,  which  can  never  be 
maintained.  Wherefore  the  rule  in 
all  such  cases  is,  that  what  ought  to 
have  been  done  shall  be  taken  as 
done:  and  a  rule  so  powerful  it  is  as 
to  alter  the  very  nature  of  things,  to 
make  money  land,  and,  on  the  con- 
trary, to  turn  land  into  money."  By 
Sir  J.  Jekell,  M.  R.,  in  Lechmere  v. 


Earl  of  Carlisle,  3  P.  Wms.  211,  215. 
The  doctrine  of  equitable  conversion, 
though  for  the  first  time  thoroughly 
considered  in  Fletcher  v.  Ashburner, 
1  Bro.  C.  C.  497,  had  already  been  for- 
mulated in  equity  prior  to  that  de- 
cision. In  that  case  the  testator, 
blending  his  real  and  personal  es- 
tates in  one  fund,  directed  a  sale, 
and  that  the  trustees  should  hold  tiie 
proceeds  for  the  life  or  widowhood 
of  his  w^ife,  and  on  her  death  pay 
over  the  fund  to  his  daughter  and 
son,  share  and  share  alike,  when 
either  attained  the  age  of  twenty- 
one.  The  daughter  attained  major- 
ity and  died  unmarried  before  her 
brother  and  mother.  The  son  was  of 
age  at  the  death  of  the  testator,  but 
died  without  issue  in  tlie  life  of 
his  mother.  The  question  arose  be- 
tween the  personal  representative  of 
the  widow,  who  was  the  sole  next  of 
kin  of  the  son,  and  who  claimed  tlie 
fund  as  personal  property,  and  the 
heir  at  law  of  the  son.  The  chancel- 
lor determined  that  as  the  son  had 
the  whole  beneficial  interest  vested 
in  him  by  his  surviving  his  sister, 
but  subject  to  his  mother's  life  inter- 
est, it  went  to  her  as  money,  as  his 
sole  next  of  kin. 


§§  696,  697.]  EQUITAELE    CONYKKSIOX.  957 

§  G96.  The  inteiitiou  of  tlie  testator  to  effect  a  conver- 
siou. —  A  constructive  conversion  of  land  into  money,  or  vice 
versa,  "will  not  be  effected  by  the  will  unless  such  is  plainly  the 
intention  of  the  testator.  "Whether  conversion  shall  take  place 
depends,  not  upon  any  particular  language  used  in  the  will, 
Init  upon  his  intention  as  it  is  gathered  from  the  provisions  of 
tlie  "wliole  will.  The j)j'i)na facie  presumption  always  is  that 
all  property  which  is  disposed  of  by  the  will  is  to  retain  its 
original  character  indefinitely,  and  the  intention  to  effect  a 
constructive  conversion  must  be  clearly  and  unequivocally 
shoAvn.  The  intention  to  convert  must  be  ascertained  exclu- 
siveh^  from  the  language  of  the  will.  Parol  evidence  is  not 
admissible  to  prove  the  existence  of  this  intention,  except  so 
far  as  parol  evidence  may  be  received  to  show  the  circum- 
stances of  the  testator  and  the  condition  of  his  estate  at  the 
time  of  his  death.^ 

§  G97.  A  power  of  sale  alone  does  not  convert  —  The  direc- 
tion to  sell  must  be  imperative. —  In  order  that  land  devised 
shall  be  regarded  as  constructively  converted  in  equity,  it  is  ab- 
solutely necessary  that  a  sale  shall- be  directed  by  the  testator, 
either  expressly  or  by  necessary  implication.  If  a  sale  is  di- 
rected, the  direction  to  sell  must  be  out  and  out,  in  absolute 
and  positive  terms.  The  direction  to  sell,  in  order  to  effect  a 
conversion,  must  be  mandator}''  and  imperative.  The  power 
of  sale  must  be  directed  to  be  exercised  irrespective  of  any  and 
all  contingencies.     A  mere  authority  to  sell  at  the  discretion 

1  The  doctrine  of  equitable  conver-  paid;  whether  the  land  is  actually 

sion  is  thus  stated  in  the  leadinpf  conveyed.     Tlie  owner  of  the  fund 

ca.se  of  Fletclier  v.  Ashburner,  1  Bro.  or  the  contracting  parties  may  make 

C  C.  497,  4!i'J,  and  approved  in  Whel-  lan<l   money,   or  money  land.     The 

dale    V.    Partridi^e,  5   Ves.  388,  .39(J:  foundation  of  this  docirino   is   (he 

"Money  directed  to  be  employed  in  well -known      ecpiitablo      iirincipio 

the   pun;hase  of  land,  and  land  di-  which  (;onsi<lers  that  as  <Ione  which 

re<;ted  to  be  sold  and  tiirn<'il  into  ought  to  have  been  done.     The  tcs- 

money,  are  to  bo  ronsidcn-d  as  tliat  tator  may,  by  directing  the  convor- 

K|K?cies  of  i»roiM'rty  into  which  they  sion  of  land  into  money,  or  money 

are  directeil  to  bo  converted;  anfl  into  land,  so  alter  and  change  tho 

this  in  whatever  manner  (he  direc-  charac-ter     of    his     property     that, 

tion   is  given  —  whetiier  by  will,  by  though   no  actual  alteration   in    its 

way    of    contmct,     marriage     arti-  character  has  takc^n  jilace,  those  to 

chu  settlements,  or  otherwis«>;  and  whom   he  has  distributed   it  by  his 

whether  the   money  I«j  actually  de-  will  take  it  in  its  new  character." 
p<Mitod   or   only   ccnenanled    to    bo 


95S 


LAW    OF    WILLS. 


[§  69T. 


of  the  trustee,  witliont  any  provision  absolutely  necessitating  a 
sale,  will  not  work  a  conversion.  The  language  of  an  express 
direction  to  sell  is  not  material;  the  language  need  not  be  ex- 
pressly mandatory,  if  from  the  whole  will  the  direction  to 
sell  is  mandatory.  The  intention  to  require  a  sale  is  most  com- 
monly manifested  by  an  express  direction  in  the  will  that  land 
shall  be  sold;  but  the  request  of  the  testator,  or  his  wish  or 
desire,  that  the  land  devised  shall  be  sold,  is  also  clearly  manda- 
tory and  imperative,  if  from  the  context  it  is  apparent  that  a 
sale  is  necessary  to  carry  out  his  intention.^ 


1  Nevitt  V.  Woodburn  (III.,  1898),  51 
N.  E.  R.  593;  Hocker  v.  Gentry,  3 
Mete,  (60  Ky.)  463;  Christler  v.  3Ied- 
dis,  6  B.  ]\rou.  (45  Ky.)  35,  37;  Collins 
V.  Champ.  15  B.  Mon.  (Ky.)118:  Hag- 
gard V.  Rout  (1845),  6  B.  Mon.  (Ky.) 
247,  249;  Green  v.  Joimson,  4  Biish 
(67  Ky.),  164,  167,  Whittemore  v. 
Rvtssell,  80  Me.  297:  Hewitt  v.  Fisher, 
1  Har.  &  G.  (Md.,  1827),  83,  96;  Leden- 
ham  V.  Nicholson,  1  Har.  &  G.  (Md.) 
267;  Thomas  v.  Wood,  1  Md.  Ch.  296, 
299;  Orrick  v.  Boehm,  49  Md.  72; 
Gates  V.  Hunter,  13  Mo.  (1850),  511; 
Cook  V.  Cook,  20  N.  J.  Eq.  (1869),  375, 
376;  Oberle  v.  Lerch,  18  N.  J.  Eq.  346, 
575;  Wurts  v.  Page,  19  N.  J.  Eq.  365, 
375;  Forsyth  v.  Forsyth,  46  N.  J.  Eq. 
400,  19  Atl.  R.  119;  Smith  v.  Bay- 
right,  34  N.  J.  Eq.  424;  Brink  v.  Lay- 
ton,  2  Redf.  79,  b5:  Bunce  v.  Vander- 
gi-ift,  8  Paige  (1839).  37.  41:  In  re 
Vandervoort,  1  Redf.  (N.  Y.)  270,  275; 
Marsh  v.  Wheeler,  2  Edw.  Ch.  (1833), 
156,  159;  Slocum  v.  Slocum,  4  Edw. 
Ch.  (1844),  613,  617;  White  v.  Howard, 
46  N.  Y.  144,  162  (1871);  Lorillard  v. 
Coster,  5  Paige  (N.  Y.),  172,  218; 
Sliarpsteen  v.  Tillou,  3  Cow.  (N.  Y.) 
651:  Greenland  v.  Waddell.  23  N.  E. 
R.  367,  116  N.  Y.  234;  In  re  Harden- 
brook,  52  N.  Y.  S.  845,  23  Misc.  R.  538; 
Baker  v.  Baker,  45  X.  Y.  S.  870,  18 
Appeal  D.  189;  Mutual  Life  Ins.  Co. 
V.  Bailey.  45  N.  Y.  S.  1069;  McBee. 
Ex  parte.  63  N.  C.  332:  Croom  v.  Her- 
ring, 4  Hawks'  Eq.  (11  N.  C,  1825), 


393;  Ferguson  v.  Stewart,  14  Ohio 
(1846),  140:  Collier  v.  Collier,  3  Ohio 
St.  (1854).  369.  374:  Richey  v.  John- 
son, 30  Ohio  St.  288  ("I  devise  my 
executors  shall  sell");  Anewalt's  Aj)- 
peal,  42  Pa.  St.  (1862),  414.  416:  Jones 
V.  Caldwell,  97  id.  45;  Hammond  v. 
Putnam,  110  Mass.  235;  Bleight  v. 
Bank,  10  Pa.  St.  (1849).  131;  Perots 
Appeal.  102  Pa.  St.  235;  Roland  v. 
Miller,  100  Pa.  St.  47;  Phelps  v.  Pond, 
23  Pa.  St.  69;  Petersons  Appeal,  88 
Pa.  St.  397,  1  Am.  Prob.  R.  187,  192; 
Henry  v.  McCloskey,  9  Watts  (Pa.), 
145;  Commonwealth  v.  Gordon  (Pa., 
1887),  7  Atl.  R  229;  Rhode  Island 
Trust  Co.  V.  Harris.  39  Atl.  R.  750; 
In  re  Holder  (R.  L.  1898),  41  Atl.  R. 
576;  Postell  v.  Postell,  1  Des.  173  (S. 
C,  1790);  Bell  v.  Bell,  25  S.  C.  149; 
Effinger  v.  Hall,  81  Va.  107;  Hareum 
V.  Hudnall,  14  Gratt.  ( Va.,  1858).  369, 
374;  Gould  v.  Taj-lor  Orphan  Asylum, 
50  X.  W.  R.  422  (1879),  46  Wis.  106; 
Dodge  V.  Williams,  46  Wis.  70;  Scott 
V.  West,  63  Wis.  529  (1885),  24  N.  W.  R 
61,  25  N.  W.  R.  18;  Bell  v.  Humphrey, 
8  W.  Va.  (1875),  1,  19;  Tazewell  v. 
Smith,  1  Rand.  (Va.)  313;  Craig  v. 
Leslie,  3  Wheat.  (U.  S.)  563.  "  I  allow 
my  land  to  be  sold  "  (Ramsey  v.  Han- 
non,  33  Fed.  R  425),  "  I  wish  my  land 
to  be  sold"  (Brothers  v.  Cartwright, 
2  Jones'  Eq.  (N.  C.)  113,  116),  "the  ex- 
ecutors to  dispose  of  my  land  "  (Ran- 
kin V.  Rankin,  36  111.  293,  299),  are  all 
mandatory  expressions.    A  declara- 


§  697.] 


EQUITABLE    CONTEKSIOX. 


959 


The  existence  of  a  power  of  sale  in  a  irvf^fee  or  in  tJie  executor 
does  not  alone  icorh  a  conversion,  where  iipou  the  whole  will  the 
exercise  of  the  power  is  not  by  the  will  mandatory  and  im- 
perative. A  discretion  as  to  the  time  or  the  mode  of  executing- 
a  power  of  sale  will  not  prevent  a  conversion ;  but  where  the 
trustee  having  a  power  of  sale  has  a  full  discretion  whether  or 
not  a  sale  shall  take  place,  which  he  may  or  may  not  exercise, 
according  to  his  best  judgment,^  the  hind  will  not  be  equitably 
converted.- 


tion  by  the  testator  that  his  real 
property  shall  be  considered  money 
is  not  usually  sufficient,  unless  it  is 
coupled  with  an  intention  to  sell, 
Attorney-General  v.  Mangles,  o^Iees. 
&  WeL  120;  Johnson  v.  Arnold,  1 
Ves.  169.  And  see  also  cases  cited  in 
note  2.  page  959. 

1  A  frequent  illustration  of  the  rule 
of  the  text  may  be  found  where  a 
power  of  sale  of  the  land  is  conferred 
upon  the  executor  to  pay  debts  or 
legacies.  The  personal  property  of 
the  testator  is  invariably  tlie  primary 
fund  for  the  payment  of  debts  and 
legacies,  in  the  absence  of  a  contrary 
intention  clearly  expressed.  And  it 
will  be  presujued  tliat  the  power  of 
sale  was  given  to  tlie  executor  only 
to  facilitate  the  settlement  of  the  es- 
tate in  case  the  personal  property 
should  not  prove  sufficient  to  pay 
debts  and  legacies.  If  there  is  suf- 
ficient personal  property  to  pay  debts 
and  legacies  without  selling  the  real 
prof)erty,  there  is  no  constructive  con- 
vernion  of  the  latter  where  the  power 
of  sale  is  not  iin|X'rative  in  its  terms. 

2  Allen  V.  Watts.  9S  Ala.  :iH-i:  James 
V.  ThriK-kmorton,  r,":  Cal.  (IHMl),  ;jf}s, 
:W2;  Clay  v.  Mart.  7  Dana  (Ky.),  11. 
17;  McCulIoli  V.  iMsliioli.  1  liar.  &(>. 
(.Md.;  m-,  Siiiithers  v.  UfK>\><T,  2'.i  Md. 
273;  Howard  v.  Peavey,  128  111.  m), 
2!  N.  E.  IL  r,(r.\;  Holland  v.  Cruft.  :{ 
<Jrny.  102.  IW);  Hr.-arly  v.  Hrcarly,  9 
N.  J.  Va\.  21,  :{1 ;  Kornaine  v.  Hf'n<lrick- 
Hon.  21  N.  .1.  Fai  (\H7:U.  2:51;  Koiiva- 
linka    v.    (Jeib..-!,    10    X.    J,    I^i.    ll:{; 


Parker  v.  Glover,  42  N.  J.  Eq.  559,  9 
Atl.   R.   217;    Ness  v.   Davidson,   49 
Minn.   469   (1892),   52  N.  W.   R  46; 
Eneberg  v.  Carter,  98  Mo.  273.  12  S. 
W.  R.  522;  Fowler  v.  Depau,  26  Barb. 
(N.  Y.)  224.  289;  Phelps  v.  Phelps,  2S 
Barb.  (N.  Y.,  1857),  121,  139;  Matter 
of   Vandervoort.    1    Redf.   270,   275; 
Hayes  v.  Kerr,  45  N.  Y.  S.  1050;  Sayles 
V.  Best.  20  id.  951,  66  Hun,  628;  Har- 
ris V.  Clark,  7  N.  Y.  (1852).  242,  261; 
Phelps'  Ext  v.  Pond,  28  N.  Y.  (1861), 
69,  77:  Moncrief  v.  Ross,  50  N.  Y.  431, 
436;  McCarty  v.  Deining,  4  Lans.  (X. 
Y.,  1871),  440]  442;  Parker  v.  Linden, 
20  N.  E.  R,  858,  861.  113  N.  Y.  28; 
White  V.  Howard.  46  X.  Y.  144.  163; 
Chamberlain  v.  Taylor.  105  X.  Y.  185; 
Delalield  v.  Barlow,  107  X.  Y.  535.  14 
X.  E.  R.  498;   Asche  v.  Asche.  113 
N.  Y.  232,  21  N.  E.  R.  70;  In  re  Ring- 
ham,  127  N.  Y.  290,  27  X.  E.  R,  1055; 
Wright  V.  Trustees,  1  HolT.  Ch.  202, 
219;  Xewell  v.  Xichols,  12  Hun,  604; 
^lellen  v.  Baning,  72IIun.  176;  Scholle 
v.  Scholle.  21  N.  E.  R.  84.  113  N.  Y. 
261;  Chftv.  Moses.  22  X.   E.   R,  393, 
116  X.  Y.   144:  P.-nficId  v.  Tower.  1 
X.  I).  216.  46  X.  W.  R.  4!3;  (Jralumi 
V.  Litth-.  5  Ire.l.  K(i.  (X.  C.)I07;  I'owell 
V.  I^)\vell.  6   Ired.    E(|.  50;  Xewby  v. 
Skinner,  1  Dev.  i\:  Hat.  Kf].  (N.C..  1837), 
4HM.   I'M;  Mills  V.  lliirris.  10  S.  K  R 
704.    104    X.    C.   626;    Henry   v.    Mc- 
Closkey.  9  Watts  (Pa.).   115;  Bloight 
V.  Maiiufaef  \ners"  Bank.  10  Pa.  St.  131, 
132;  Xagle'K  A|>|wal,  13   Pa.  St.  260; 
.Stoner  V.  Zimiiierinan,  21  Pa.  .St.  .'191; 
Ivlwardh'  Aj.iM.al,  47  Pa.  St.  Ml,  153; 


960  LAW    OF   WILLS.  [§  698. 

If  the  conversion  of  tlio  proport}^  is  relegated  to  tlie  jiulg- 
ment  or  the  discretion  of  tlie  trustee,  or  to  that  of  any  other 
person,  no  constructive  conversion  will  take  place,  for  the  rea- 
son that  the  actual  intention  of  the  testator  is  not  ascertainable. 
Conversion  is  only  decreed  where  an  intention  to  convert  is 
clearly  proved  to  have  existed  in  the  mind  of  the  testator.  If 
lie  leaves  it  wholly  to  the  discretion  of  liis  trustee  to  convert 
or  not,  it  is  very  apparent  that  lie  had  no  fixed  intention  in  liis 
mind  to  convert  the  property.  If  he  had  desired  to  do  that,  he 
would  have  given  mandatory  directions  for  tliat  purpose.  Thus, 
for  example,  we  will  suppose  that  tlie  testator  shall  direct  liis 
executor  to  invest  a  sum  of  money  in  good  j^'^rsonal  securities, 
or  to  purchase  with  it  a  piece  of  land,  as  he  may  see  Jit  and 
proper,  for  the  benefit  pf  A.,  who  dies  while  the  property  is 
still  personalty  in  the  hands  of  the  executor.  As  the  testator 
appears  to  have  been  indifferent  wiiether  the  executor  shall 
purchase  land  or  not,  no  reason  exists  after  the  death  of  the 
person  for  Avhose  benefit  the  executor  was  to  act,  and  who  alone 
had  the  right  to  elect  to  take  the  property  unconverted,  to  de- 
cree a  constructive  conversion.  AVhere  the  power  to  convert  is 
wholly  discretionary,  the  representatives  of  the  absolute  owner 
take  the  property  as  it  is  found  at  his  death.  If  the  trustee  has 
dela^^ed  conversion  of  the  money  into  land,  as  he  has  the  power 
to  do,  it  goes  to  the  next  of  kin.  If  the  money  has  been  con- 
verted by  the  exercise  of  the  trustee's  discretion,  it  is  land,  and 
descends  as  such  to  the  heir,  subject  to  th-j  dower  of  the  widow 
of  the  absolute  owner. 

§  608.  Direction  to  sell  land  for  the  purpose  of  paying 
<lebts  —  "When  it  converts. —  A  mere  authority  in  the  executor 
to  sell  land  for  the  purpose  of  paying  the  debts  of  the  testator, 
without  an  explicit  and  mandatory  direction  to  sell  it,  does  not 
work  a  constructive  conversion.    In  such  a  case,  if  there  is  sufli- 

Neely  v.  Grantham,  m  Pa.  St.  433,  136  Pa.  St.  14,  19  Atl.  R.  10G8,  26  W. 

437;    Anewalt's  Appeal,   43  Pa.   St.  N.  C.  254;  Greenoiigh  v.Small,20  Atl. 

414;  Chew  v.  Nicklin,  45  Pa.  St.  84,  R.  396,  137  Pa.  St.  128:  Sill  v.  Plane}', 

87;  Brolasky  v.  Gaily,  51  Pa.  St.  509.  28  Atl.  R.  251,  159  Pa.  St.  264.  33  W. 

513:  Millers  Appeal,  GO  Pa.  St.  404;  N.  C.  536;  In  re  Ingersoll's  Estate,  31 

McClure's  Appeal,  72    Pa.   St.   414;  Atl.  R.  860.  167  Pa.  St.  536, 36  W.  N.  C. 

Paige's  Estate,  75  Pa.  St.  87, 95;  Peter-  251;    Goodier  v.  Edmunds  (1893),  3 

son's  Appeal.  88  Pa.  St.  397,  1  Am.  Ch.  455;  Saliiday's  Estate,  175  Pa.  St. 

Prob.  Pv.  187;  Sheridau  v.  Sheridan,  114,  34  AtL  R.  548. 


§  699.]  EQUITABLE    COXVEKSIOX.  9G1 

cient  personal  property  that  must  be  first  used  in  paying  the 
(lebts,^  while,  if  the  personal  property  prove  insufficient,  only  so 
much  land  shall  be  sold  as  is  necessary  to  meet  the  deficiency.'* 
The  land  in  any  event  retains  its  character  as  real  property, 
where  the  direction  to  sell  for  the  payment  of  debts  is  not  im- 
perative, until  actual  sale,  and  if  more  is  sold  than  is  necessary 
to  pay  the  debts  the  surplus  will  be  constructively  reconverted, 
and  it  "will  pass  to  the  heir'  or  to  the  devisee  of  the  land.  So 
where  land  which  was  devised  to  A.  for  life,  then  to  be  sold 
and  the  proceeds  distributed,  had  to  be  sold  at  once  to  pay  the 
debts  of  the  testator,  the  money  not  used  to  pay  debts  should 
be  held  and  the  interest  paid  to  the  life  tenant  of  the  land. 
Only  on  his  death  may  it  be  distributed.* 

§  699.  Conversion  without  the  creation  of  an  express  trust 
to  sell. —  In  the  majority  of  cases  an  equitable  conversion  is 
the  result  of  an  imperative  direction  to  sell,  couched  in  express 
terms.  But  it  is  not  always  necessary  that  an  express  direc- 
tion to  sell  land  shall  be  inserted  by  the  testator,  nor  even  that 
he  shall  give  his  executors  or  trustees  an  express  power  of  sale.* 
Where  the  intention  and  the  purposes  of  the  testator,  as  they 
are  manifested  by  the  provisions  of  the  whole  will,  clearly  re- 
quire a  conversion  in  order  that  they  may  be  carried  out,  a  con- 
structive conversion  will  be  decreed  in  equity,  though  no  express 
authority  or  direction  to  sell  is  contained  in  tlie  Avili."  Thus, 
where  a  testator,  after  stating  that  he  did  not  know  how  much 
property  he  owned,  as  it  was  widely  scattered  and  unrealized, 
divided  his  estate  into  shares  and  then  directed  his  executor 
to  get  his  eatate  together^  it  was  held  that  a  conversion  took  place, 
though  no  express  power  of  sale  was  given  to  the  executor.' 
So  also  a  direction  contained  in  a  Avill  to  invest  a  sura  therein. 

>  Ante,  §  374.  (S.  C,  1837),  212,  217;  Cruse  v.  Barley, 

2  ajm[.are  ante.  §  379.  3  P.  W.  22. 

*JackHon  v.  Jackson,  6  Johns.  73;  <  In  re  Hubert's  Estate,  181  Piu  St. 

Perkins  v.  Coujchlan,  148  .Mass.  301. 18  551,  37  Atl.  It  57«. 

N.  E.  R  600;  .Shari»8teen  v.  Tillou,  3  ^ Post,  %  701. 

Cow.  (N.  Y.)  651;  IIawlf«y  v.  James,  «  Phelps  v.  Pliolps,  28  Parb.  (N.  Y., 

7  Paige,  213  (N.  Y..  1838j;  \Vhit<j  v.  1H5M),  121,  13!);  Clarke  v.  Clarke,  46 

Howar.l,  46  N.  Y.  (1871),  144;  Clift  v.  S.  C.  230.  24  S.  R  \L  202;  Pago's  Es- 

Moses,  22  .>.  E.  R  303,  116  N.  Y.  144,  tate,  75  Pa.  St.  H7:  McHiigh  v.  Mt^ 

154;  McCarty  V.Terry,  7  I«'ins.(.\.Y.)  C;<»le.  07  Wis.    Kit!.  72  .\.  W.  R  631; 

231,   2.38;   North   v.  Valk,   Dud.    Erj.  Cowley  v.  IlartMirme,  1  Dow.  361. 

'  .M<jw<r  V.  Orr,  7  Hare,  473,  475. 
61 


962  LAW   OF   WILLS.  [§  699. 

specified  in  personal  property,  the  income  of  wlifch  is  to  be 
paid  to  legatees,  coupled  with  a  power  of  sale  over  the  land 
given  to  an  executor,  will,  where  the  testator's  estate  consists 
■wholly  of  land,  amount  to  an  imperative  direction  to  sell  the 
land,  and  it  will  convert  the  land  as  of  the  date  of  the  testa- 
tor's death. ^ 

But  a  mere  direction  to  divide  the  estate  into  shares,  though 
coupled  with  an  express  power  of  sale,  does  not,  of  necessity, 
convert  land  comprised  in  the  estate,  where  the  sale  is  only  ta 
take  place  in  the  discretion  of  the  trustee,  and  if  he  shall  deem 
it  necessary  in  order  to  pay  debts  and  legacies.-  Where  a  testa- 
tor, after  giving  a  power  of  sale  of  the  residue  to  his  executors, 
directed  them  to  "pay  and  deliver  "  a  money  legacy,  and  to 
"j?a?/  and  deliver  "  the  residue,  the  word  "  convey  "  not  being 
used,  the  testator's  real  projierty  included  in  the  residue  was 
regarded  as  constructively  converted  into  personal  property.' 
Where  a  testator  gave  the  residue  of  his  estate  to  trustees  to 
be  by  them  divided  among  his  children  equally,  either  by  in- 
vesting it  for  them  or  by  selling  and  paying  the  proceeds,  giv- 
ing the  trustees  full  power  of  sale  over  his  real  estate,  it  was 
held  that  the  whole  estate  was  converted  into  money,  though 
the  trustees  had  a  discretion  to  deliver  the  shares  to  the  lega- 
tees or  to  hold  them  in  trust  for  them.* 

Summing  up  the  whole  matter,  it  may  be  said  that  while  a 
mandatory  express  trust  for  sale  is  the  most  appropriate  mode 
of  effecting  a  constructive  conversion,  its  absence  from  a  will 
does  not  prevent  one  from  resulting,  if,  upon  the  face  of  the 
will,  it  appears  that  the  intention  of  the  testator  will  be  best 
carried  out  by  constructively  converting  the  property.  That 
the  testator  seems  in  one  clause  of  his  will  to  leave  the  conver- 
sion of  the  property  to  the  discretion  of  the  trustees  is  not  con- 
trolling, if  upon  the  whole  will  it  appears  that  a  constructive 
conversion  will  best  effectuate  his  intention.  He  may  leave  the 
actual  sale  or  investment  to  the  best  judgment  of  the  trustees, 
and  then  provide  for  the  disposition  of  his  property  in  such  a 

iRoy  V.  Monroe.  47  X.  J.  Eq.  356.  20    Brandreth,  28  Beav.  273;  Burrell  v. 
AtL  R  481;  Affleck  v.  James,  17  Sim.     Baskerfield,  11  Beav.  525. 
121.  3  Dodge  V.  Williams,  46  Wis.  70,  50 

2Green\vay  v.  Greenway,  1   Giff.     N.  W.  R.  1103. 
131,29  L.  J.  Ch.  601,  605;' Lucas  v.        *  In  re  Marshall's  Estate,  147  Pa.  St. 

77,  23  AtL  R,  38L 


§  700.]  EQUITABLE    CONVEESIOX.  963 

way  as  will  conclusively  show  that  he  intends  that  it  shall  be 
converted  into  real  or  personal  property,  as  the  case  may  be. 
He  may  leave  a  fund  hi  money  to  trustees  with  a  power  to  in- 
vest it  in  land  at  their  discretion,  and  then  dispose  of  the  fund 
upon  such  limitations  as  are  adapted  exclusively  to  real  estate. 
Such  would  be  the  case  where,  having  devised  lands  to  A.  and 
his  heirs  absolutely,  he  left  his  money  in  trust  to  be  settled, 
either  in  its  original  shape  or  as  converted  according  to  the 
trustees'  discretion,  to  the  same  persoiis  and  in  the  same  manner 
as  land  heretofore  devised.  Here  the  particular  intention  that 
the  trustees  shall  exercise  a  discretion  to  convert  is  overcome 
by  the  general  intention  of  the  testator  that  those  persons  who 
will  take  the  land  devised  absolutely  to  A.  shall  also  take  the 
monev  given  him.  Though  the  testator  has  omitted  to  com- 
mand  a  conversion,  his  intention  to  have  a  conversion  is  clear, 
and  that  must  be  observed.^ 

§  700.  A  discretiou  as  to  tlie  time  and  the  place  of  sale 
does  not  prevent  a  constructive  conversion. —  A  discretion 
in  the  trustee  as  to  the  time  and  mode  of  the  sale  does  not  pre- 
vent the  conversion  as  of  the  date  of  the  testator's  death,  where 
a  sale  is  to  take  place  at  all  events.-     If  the  whole  will  clearly 

'  In  an  early  case  in  which  this  Hocker  v.   Gentry,  3  ^letc.  (00  Ky.) 

point  was    considered,   Lord   Hai"d-  463.473;  Burnside  v.  Wall,  9  B.  Mon. 

wicke  said:    "This  court  never  ad-  (48  Ky.)  322;  Clay  v.  Hart,  7  Dana 

infts  trastees  to  have  such  an  election  (Kj-.),  11,   17;  McCuUoh  v.  Dashiell, 

to  change  the  right,  unless  it  is  ex-  1    Har.  &  G.  (Md.)  96;  Smithers  v. 

pressly  given  to    theni.     Here    the  Hooper,  23  Md.  (1865),  273;  Roniaine 

money  Is  to  be  laid  out  in  land  or  se-  v.    Hendrickson,   24  N.  J.   Eq.  231 ; 

curities  for  such  uses  as  the  land  Ls  Ness  v.   Davidson,  49  Minn.  469,  53 

before  settled.     If  it  is  laid  out  in  N.  W.  R.  46;  Crane  v.  Bolles,  49  N. 

securities  (wliich  are  personal),  all  J.  Eq.  373,  24  Atl.  R.  237;  Graham 

the  limitations  might  not  take  i)lace;  v.    Livingston.   7    Hun   (N.   Y.),    11; 

fur  if  there  w;i,s  a  son  born,  lui  would  Fisher  v.  Baiita,   66  N.   Y.   46S,  476; 

take  the  whole  money  as  bi;ing  Wn-  Sayh-s  v.  Best,  ()6  Hun,  62H;  Bogcrt 

ant  in  tail,  and  the  subsi'quent  limit-  v.   Hertell,  4  Hill  (N.  Y.  1812),  492; 

atinns  would  be  defeat(.-<L     The  only  Stagg  v.  Jackson,  1   N.  Y.   206.  213; 

way  to  make  the  clause  consistent  is,  Arnold  v.  Gilbert,  5  Barb.  (N.  Y.)  190, 

that  the  money  be  laid  out  in  seen-  1!(7;  Haxtum  v.  Corse,  2  Barb.  Ch. 

riticH  till  lan<ls  are  purcluiseil,  and  (N.  Y.)  •'>()6;  Marsh  v.  Wlieeler,  2  Edw. 

the   int«Test   anrl    <lividen<ls    in    tim  Ch.  (N.  Y,  18:16),  156;  (Mift  v.  Moses, 

meantimegotosurh  iM-r>ujns;iH  would  22  N.  E.  U.  395,  110  N,  Y.  144;  Eraser 

l>e  ontitleil  to  the  l.ind."     Iviiloin  v.  v.  Trustees.  124  N.  Y.  479.  26  N.  E.  li. 

Saunders,  Amb.  211.  1034;   Powell  v.  I'owell.  6  lred.(N.  C) 

Uligh    v.    Warley,    33    Ahu     196;  ¥.<{.  50;   rarkinsoifs   Appe.il,  :!2    I'ji. 


064  LAW    OF    WILLS.  [§  YOl. 

indicates  that  real  property  must,  at  nil  co<  nfx  and  in  any  case, 
be  converted  into  money,  though  he  has  not  fixed  any  particu- 
lar time  when  the  sale  is  to  take  phice,  the  land  will  be  re- 
garded as  converted  as  of  the  date  of  his  death.  For  if  land 
is  to  be  sold  "  as  soon  as  the  trustee  should  see  it  is  necessary 
for  the  beneficiaries'  advantage,"  ^  "  with  all  convenient  speed,"  - 
"in  such  manner  as  the  executor  shall  deem  best,"'  "  when  and 
in  the  best  manner  possible,"  *  "as  soon  as  practical  and  proper, 
but  within  a  year,"*  "to  best  advantage,  in  the  sound  discre- 
tion of  the  trustee,"^  "with  all  speed  as  soon  as  possible,"^ 
"in  such  manner  and  at  such  times  as  they  think  proper,"^ 
"  as  soon  as  convenient,  consistent  with  a  fair  price  to  be  ob- 
tained,"^ or  "in  a  reasonable  time,  with  all  possible  diligence,"^" 
the  conversion  will  not  depend  upon  the  caprice,  negligence 
or  procrastination  of  the  trustee  in  delaying  a  sale,  but  will  be 
regarded  as  having  taken  place  at  the  death  of  the  testator. 

§  701.  Conversion  where  no  express  power  of  sale  is  con- 
ferred.—  It  is  not  necessary,  in  order  that  land  devised  shall 
be  constructively  converted,  that  the  testator  shall,  in  express 
words,  confer  the  power  to  sell  it  upon  any  particular  person. 
If  the  testator  intends  that  the  land  shall  be  sold,  though  he 
does  not  state  by  whom  it  is  to  be  sold,  a  power  of  sale  will 
be  implied  in  the  person  who  is  to  distribute  the  proceeds  of 
the  land  when  sold.  Thus,  if  land  is  directed  to  be  sold,  and 
the  proceeds  are  to  be  distributed  in  legacies  by  the  executor, 
a  power  of  sale  by  implication  will  be  conferred  upon  him, 
and  the  land  will  be  regarded  and  treated  as  constructively  con- 
verted from  the  death  of  the  testator,  always  provided  the 
direction  to  sell  is  imperative.'^ 

St.  455;  McClure's  Appeal,  72  Pa,  St.  5  ingrem  v.  Mackey,  5  Redf.  Sur. 

414;  Bell  v.  Bell,  25  S.  C.  149;  Taze-  (N.  Y.)  357,  359. 

well  V.   Smith,   1   Rand.   (Va.)  313;  6  Martin  v.  Sherman,  2  Sandf.  (N.  T.) 

Rinehart  v.  Harrison,  1  Bald.  C.  C.  341. 

177;  Chandler's  Appeal,  34  Wis.  505;  ''Johnson    v.    Bennett,    39    Barb. 

Smith     V.    Claxton,     4    Mad.     484;  (N.  Y.,  1863).  237,  241. 

Doughty  V.  Bull,  2  P.  W.  320;  Deg  8  Walker  v.  Shore,  9  Ves.  386. 

V.  Deg,  2  P.  W.  412,  415.     See  also  ^  Irish  v.  Huested,  39  Barb.  (N.  Y.) 

cases,  §  702.  411,  417. 

1  Doughty  V.  Bull,  2  P.  W.  320.  J"  Hutchin  v.  Mannington,  1  Ves. 

2  Fitzgerald  v.  Jervoise,  5  Mad.  257.  Jr.  366. 

3  Carr  v.  Brand,  85  Va.  597.  "  Winston  v.  Jones,  6  Ala.  550,  556, 
«  Arnold  v.  Gilbert,  5  Barb.  (N.  Y.)  557;  Rankin  v.  Rankin,  36  111.  (1865), 

190,  197.  293;  Trustees  v.  Fibher,  30  Me.  523, 


§  T02.] 


EQUITARLE    CONVERSION. 


965 


^  70'2.  The  date  at  wliicli  constructive  conversion  takes 
place. —  The  constructive  conversion  of  land  into  money,  or 
vice  versa,  when  no  time  is  mentioned  for  a  sale  or  purchase, 
usually  takes  place  as  of  tlie  date  of  the  death  of  the  testator, 
where  the  legacy  of  the  proceeds  of  the  sale  vests  at  that  date. 
This  is  so  when  the  actual  sale  is  to  be  made  whenever  the 
trustee  shall  deem  it  advantageous,^  or  where  the  time  of  the 
actual  sale  is  left  whollv  to  the  discretion  of  the  trustee.-   But 


527:  Morton  V.  Barrett,  22  Me.  257; 
Going  V.  Emery,  16  Pick.  (Mass.)  107; 
Lippincott  v.  Lippiucott,  19  N.  J.  Eq. 
121.  122;  Hollman  v.  Tigges.  42  N.  J. 
Eq.  127,  130;  Bentham  v.  Wiltshine, 

4  MaJd.  44;  Patton  v.  Randall.  1  J. 
&  W.  189;  Tylden  v,  Hyde,  2  Sim.  & 
St.  238;  Sugdea  on  Powers,  p.  134; 
Forbes  v.  Peacook,  11  Sim.  152,  12 
Sim.  528,  11  Mees.  &  Welsby,  630; 
Robinson  v.   Lowater,  17  Beav.  592, 

5  De  Gex.  M.  &  G.  272.  For  other 
cases  in  which  a  power  of  sale  is 
raised  by  implication  in  the  execu- 
tor, see  j->sf,  Jig  782,  783. 

1  Robinson  v.  Robin.son,  19  Beav. 
495.     See  ante,  §  700. 

2 Cunningham  v.  Moody,  1  Ves.  176; 
Crabtree  v.  Bramble,  3  Atk.  680,687; 
High  V.  Worley,  33  Ala.  196;  Loftis 
V.  Gla.ss,  15  Ark.  680;  Stevenson's  Es- 
tate, 2  Del.  ClL  197:  Hooker  v.  Gen- 
try. 3  Mete.  (Ky.)  463,  473;  Arnold  v. 
Arnold,  11  li.  .Mori.  (Ky.,  1850),  81.  88; 
Gedges  v.  Inst,  13  id.  530,  537;  Nevitt 
V.  Woodburn  (III.,  1898).  51  N.  E.  R. 
593:  Perkins  v.  Coughlin,  148  Mass. 
30;  Brink  v.  I^iyton.  2  Re<lf.  (N.  Y.) 
79;  Marsh  v.  Wheeler.  2  Edw.  Ch. 
(N.  Y.)  1.56;  Cook  V.  Cwk.  20  N.  J.  Eq. 
(1869),  375,  377;  Dutton  v.  Pugh.  45 
N.  J.  Eq.  (1889),  426,  429;  C;rune  v. 
Belles.  49  N.  J.  Eq.  373,  379:  Moore 
V.  RobbiriH,  53  N.  .1.  Kq.  137;  HuglieH 
V.  Ma.-kiii,  11  .N.  Y.  S.  710;  Under- 
wood V.  Curtis.  28  N.  H  K.  5H5,  127 
N.  y.  523;  Kiine  v.  fJott,  21  Wend. 
(N.  Y.)  (HI :  Stfigg  V.  .liickw.n.  1  N.  Y. 
(IHIH).  206.  212:  Arnold  v.  (iilb.Tt.  5 
Barb.  (1819),   I'M),   197;  Iriwh   v.    Ilii.'- 


sted,  39  Barb.  (N.  Y.)  411,  417;  Kear- 
ney V.  Missionary  Soc,  10  Abb.  N.  C. 
274:  Savage  v.  Burnham,  17  N.  Y. 
(1859),  561.  509:  Fisher  v.  Banta.  66 
N.  Y.  468;  Lent  v.  Howard,  89  N. 
Y.  169,  176;  Roberts  v.  Corning, 
89  N.  Y.  (1882),  225,  239;  Haxton  v. 
Corse.  2  Barb.  Ch.  (N.  Y.,  1848),  506. 
519:  Forsyth  v.  Rathbone.  34  Barb. 
(N.  Y.)  388;  Johnson  v.  Bennett,  39 
Barb.  237,  241;  Van  Vechteu  v.  Van 
Veghten,  8  Paige  (1840),  104,  129; 
Mutual  Life  Insurance  Co.  v.  Bailey, 
45  N.  Y.  S.  1069:  Ex  parte  McBee.  63 
N.  C.  332;  Parkinson's  Appeal,  32  Pa. 
St.  455,  458:  Ciiew  v.  Nicklin,  45  Pa. 
St.  84.  88;  Horner's  Ai)i)eal,  56  Pa.  St. 
405.  408;  Allison  v.  Wilson.  13  Ser.  & 
R.  (Pa.)  330;  Willing  v.  Peters,  7  Pa. 
St.  287;  Brolasky  v.  Gaily,  51  Pa.  St. 
509;  Jones  v.  Caldwell,  97  Pa.  St  42; 
Evans'  Appeal.  63  Pa.  St.  183;  Mc- 
Clure-s  Api)eal,  72  Pa.  St.  414,  419; 
McWilliains'  Appeal.  117  Pa.  St.  Ill, 
11  Atl.  R.  383:  In  re  Thomman's  Es- 
tate, 29  Atl.  R.  84.  161  Piu  St.  444;  In 
re  Holder  (R.  I..  18!»8),  41  Atl.  R.  576; 
Carney  v.  Kain,  40  W.  V:i.  758,  23  S. 
E.  R.  650;  Ellinger  v.  Hall.  81  Va.  94; 
Milw.  Home  v.  Betdior.  87  Wis.  (1894). 
409.  414;  Dewolf  v.  Lawson,  61  Wia 
469.  479:  Ramsey  v.  Hanlon,  33  Fed. 
R  425;  Rinehart  v.  Harrison,  1  Baldw. 
C.  C.  117;  I^'aucl.'rk  v.  Mead,  2  Atk. 
167;  Hiitcliin  v.  Manningt4)n,  1  Ves. 
.Jr.  33'i:  Robinson  v.  Rabinson.  19 
li^'uv.  191,  Hourin«  V.  l{(inrni>,  2  Hare, 
35;  Bjirkt^r  v.  May,  9  Barn.  iS:  Crossw. 
4H!(:  Giiibrt  V.  Angi.'r.  12  Ve.s.  413; 
.SmiUi  v.  Claxtoii.  I  Ma.j.   IS|. 


9GG  LAW   OF   WILLS.  [§  703. 

generally  where  the  beneficiary  of  a  trust  for  sale  has  no  power, 
according  to  the  terms  of  the  will,  to  compel  the  trustee  to  exe- 
cute his  power  of  sale,  the  power  is  not  imperative,  and  it  does 
not  therefore  w^ork  a  conversion.  Thus,  where  the  testator  di- 
rects his  executors  to  lay  a  sum  of  money  out  at  interest  for  a 
benefiiciary,  or  at  their  oj)tion  to  invest  it  in  land  for  his  use,  no 
conversion  takes  place  until  the  land  is  actually  purchased ;  ^ 
for  the  legatee  cannot  compel  the  investment  of  the  fund  in 
land.  If  lands  are  directed  to  be  sold,  in  language  which  works 
a  conversion  as  of  the  date  of  the  death  of  the  testator,  and  the 
time  of  the  sale  is  postponed  or  is  left  to  the  discretion  of  the 
trustee,  or  is  dependent  on  the  request  or  consent  of  the  bene- 
ficiary, the  rents  issuing  out  of  the  lands  until  the  sale  belong 
to  him  who  is  to  take  the  proceeds  of  the  lands  when  sold,  and 
they  will  go  to  him  w^ith  the  proceeds,  or  they  may  be  paid  to 
him  in  the  interim.- 

§  703.  The  sale  of  land  after  the  death  of  the  tenant  for 
life. —  The  fact  that  land  is  not  to  be  sold  until  after  the  expi- 
ration of  a  life  estate  in  it,  created  by  the  will,  does  not  prevent 
a  constructive  conversion  from  taking  place  as  of  the  death  of 
the  testator.     Thus,  if  the  testator  gives  the  income  of  land  to 

1  In  re  Becker's  Estate,  150  Pa.  St.  cept  tliat  which  is  implied  in  every 

524,  24  Atl.  R.  687.  case  of  this  character,  that,  at  the 

^Harcum  v.  Hudnall,  14  Gratt.  death  of  the  testator,  the  purposes 
(Va.)  369,  381;  Pearson  v.  Lane,  17  for  which  the  conversion  was  di- 
Ves.  101;  Casamajor  v.  Strode,  19  rected  liave  not  failed,  but  still  re- 
Ves.  390;  Miller  v.  Miller,  L.  K  13  Eq.  quire  that  the  j)Ower  should  be  exer- 
263;  Burges  v.  Lamb,  16  Ves.  190;  cised.  In  all  cases  where  conversion 
Cruikshank  v.  Chase,  113  N.  Y.  337,  takes  place,  it  is  because  the  purposes 
21  N.  E.  R.  64.  So,  for  illustration,  if  of  the  will  require  it.  The  conver- 
land  is  devised  upon  trust  for  sale  sion  may  be  entire,  embracing  the 
and  to  pay  the  interest  of  the  pro-  whole  estate,  or  partial,  extending 
ceeds  to  A.  for  his  life,  A.  will  be  en-  only  so  far  as  is  necessary  to  satisfy 
titled  to  receive  the  rent  from  the  special  purposes  indicated  in  the  will, 
date  of  the  death  of  the  testator.  The  matter  to  be  considered  is  the 
'•  The  direction  that  tlie  executor  intention  of  the  testator.  The  con- 
should  sell  all  his  (the  testator's)  real  version,  whether  absolute  to  all  in- 
estate  operated  as  a  conversion  of  tents,  or  partial  only,  is  the  one  or  the 
the  real  estate  into  personalty  from  other  because  the  purpose  of  the  wil^ 
the  time  of  his  death.  Tiie  direction  %.  e.,  the  intention  of  the  testator,  was 
is  unqualified  and  peremptory.  It  that  the  conversion  should  be  gen- 
leaves  no  discretion  to  the  executor,  eral  or  partial,  for  all  purjjoses  or  for 
except  ;is  to  the  time  and  manner  of  limited  purposes  only."  Andrews,  J., 
sale.  The  exercise  of  the  power  of  in  Fisher  v.  Banta,  66  N.  Y.  468,  476. 
sale  is  subject  to  no  condition  ex- 


§   704.]  EQUITABLE    CONVERSION.  967 

his  Trido\v  for  life,  directing  it  to  be  sold  at  her  death,  and  then 
bequeaths  legacies  to  be  paid  out  of  the  proceeds  when  sold, 
which  legacies  by  the  terms  of  the  will  vest  at  his  death,  the 
shares  of  the  legatees  wlio  may  die  during  the  life  of  the  widow 
will  pass  as  money  to  their  next  of  kin  and  not  as  land  to  their 
heirs.^  But  it  must  be  noted  that  the  rule  that  land  is  con- 
verted as  of  the  date  of  the  death  of  the  testator  is  based  upon 
a  presumption  of  an  intention  where  the  will  is  silent  as  to 
the  time  of  sale.  It  yields  to  a  clear  expression  of  a  contrary 
intention  fixing  the  time  of  sale  in  the  future.  If  the  testator 
expressly  directs  the  sale  to  take  place  at  a  particular  future 
time,  as  so  many  years  after  his  death,  or  after  a  life  estate,  or 
if  he  has  made  it  to  depend  upon  the  request  or  consent  of  oth- 
ers, no  conversion  takes  place  until  the  date  arrives  which  is 
indicated  by  the  will  when  it  ought  to  be  sold.  "When  the  time 
appointed  by  the  testator  for  the  sale  actually  arrives,  the  land 
will  be  converted  as  of  that  date  whether  the  property  is  at 
that  time  sold  or  not.^  And  a  sale  of  the  land  may  be  made 
at  any  time  during  the  life-time  of  the  life  tenant,  with  his 
consent.^ 

§  704.  Blending  proceeds  of  land  with  personal  property — 
The  effects  of. —  The  blending  of  the  proceeds  of  land  which 
is  directed  to  be  sold  with  the  personal  property  of  the  testator, 
while  it  may  be  a  circumstance  conclusive  of  an  intention  to 
convert  the  land,  is  not  conclusive  of  an  intention  to  convert  it 
"  out  and  out,"  but  only  for  the  purposes  of  the  will.*  If  these 
purposes  fail,  the  proceeds  of  the  land  must  be  separated  from 
the  personal  estate.  They  may  be  constructively  reconverted 
and  will  then  go  to  the  heir-at-law,  though  the  testator  has  by  his 
will  given  them  as  personal  property  to  a  legatee.  And  Avhere 
the  proceeds  of  land  are  comprised  in  a  residuum  and  the  re- 

» AlW-n  V.  Watts.  98  Ala.  381;  Rum-  63  N.  Y.  052;  Richey  v.  Johnson.  30 

Bey  V.    Durliuni.  5  Ind.  71;  lii'ia  v.  Ohio  St  28H.  292;  Meuhan  v.  Bren- 

Strite,  54  M<1.  29H;  McClurc's  Apjx'Hl,  nan,  10  App.  IJ.  395.  45  N.  Y.  S.  57; 

72  Pa.  St  414,  417;  Thornrii.in'H  Hstate,  Brothers  v.  Cartwrij^ht,  2  Jones'  Eq. 

161   I'a.  St   444.  44H;  Hopp  v.  Minor,  (N.  ('.)  113;  Mr( 'lure's  Ap|>eal.  72  Pa. 

33  Omtt  (Vju)  97;  Keinhart  v.  Har-  St  414,  417.     Ar-  i  see  casos  in  not<5  2, 

rimn,  1  Maid.  C.  C.  177.  1H7.  jkikc  IHi:.. 

2  Savage  v.  Huriiharii.  17  N.  Y.  501,  •'  Hamlin  v.  Thomas.  120  Pa.  St  20. 

509;  Monr-rief    v.    H<«h.  .50  N.  Y.  130;  <S,-c  rctiiarks  of  S.-w»'ll,  M.   R,  1 

ItoH8  V.  HoljcrU*.  2  II un  (.N.  V.j.  90,  93.  Pro.  C.  U.  497,  on  \<.  499. 


963  LAW   OF   WILLS.  [§  704. 

siduary  bequest  fails,  it  will  not  be  presumed  that  the  testator, 
because  he  gave  the  proceeds  of  his  land  away  from  his  heir  to 
A.,  the  residuary  legatee,  wished  to  favor  B.,  his  next  of  kin, 
at  the  expense  of  his  heir;^  for  where  a  sale  of  land  is  directed 
for  the  benefit  of  A.,  and  the  purpose  of  the  testator  to  benefit 
A.  has  failed,  it  is  absurd  to  think  that  he  intended  the  sale  to 
take  place  for  the  benefit  of  B.,  when,  if  he  had  not  given  the 
proceeds  of  the  land  to  A.,  it  would  have  gone  unsold  to  C.^ 
The  fact  that  the  testator,  after  devising  land  in  trust  for 
sale,  directs  in  express  terms  that  the  proceeds  of  the  sale  are 
to  be  considered  as  part  of  his  personal  estate,  does  not,  where 
there  is  a  failure  of  the  purpose  of  the  conversion,  prevent  the 
creation  of  a  trust  for  the  benefit  of  the  heir-at-law.' 

In  England  it  has  been  held,  even  where  a  testator  expressly 
directed  that  the  proceeds  of  the  land  should  be  deemed  money, 
and  that  it  should  not  in  any  event  result  to  his  heir,  that, 
nevertheless,  as  between  him  and  the  residuary  legatee,  his 
claim  was  to  be  preferred  in  the  case  of  a  failure  of  the  pur- 
pose of  conversion.^  But  the  circumstances  that  a  testator 
bequeaths  money  legacies  w^liich  more  than  exhaust  the  per- 
sonalty,' and  at  the  same  time  confers  a  power  of  sale  over  his 
land  upon  the  executors,  may  indicate  an  intention  to  convert 
the  land  for  the  payment  of  the  legacies  which  have  been 
given.  So,  if  it  is  apparent  that  the  testator  intended  to  re- 
duce his  whole  estate  to-  a  common  fund  of  personal  property 
and  to  divide  it  as  a  residue,  the  executors  to  pay  it  over  to 
legatees  in  that  character,  the  land  will  be  converted,  even 
thouofh  no  sale  has  been  directed.  Thus,  a  direction  to  add 
money  to  land,  and  to  divide  it,  converts  the  land  into  money, 
for  how  otherwise  can  this  direction  be  complied  with?^  The 
real  property  may,  by  thus  being  blended  with  the  personal 

1  Ackroydv.  Smithson  (1780),  IBro.  541;  Amphlett  v.  Parke,  2  Russ.  & 
C.  C.  503:  Jessop  v.  Watson,  1  My.  My.  221,  1  Sim.  27"),  4  Russ.  75;  Digby 
&  K  665,  667;  Eyre  v.  Marsden,  2  v.  Legard,  3  P.  W.  22, 2  Dick.  500,  note. 
Keen,  564,  574;  In  re  Schauffert,  20  3 Collins  v.  Wakeman,  2  Ves.  683; 
N.  Y.  S.  302,  74  Hun,  352.  Countess  of  Bristol  v.  Ilungerford,  2 

2  Cruse  V.   Barley,  8  P.  Wra.  20;  Vernon,  645. 

Durour  v.  Motteux,  1  Ves.  Jr.  320;  *  Fitch  v.  Weber,  6  Hare,  145. 

Hutcheson  v.  Hammond,  3  Bro.  C.  C.  5  cf.  ante,  §§  374-377. 

148;  Gibbs  v.  Rumsey,  2  Ves.  &  B.  ewjnston  v.  Jones,  6  Ala,  (1844), 

294;   Emblyn  v.  Freeman,  Pre.  Cli.  550,555.    See  also  j^os^,  §  783. 


§  705.]  EQUITABLE    CONVEESIOX.  969 

property  in  a  residuum,  be  regarded  as  constructively  con- 
verted from  the  date  of  the  deatli  of  the  testator.^  But  this 
presumption  of  a  conversion  is  not  conclusive,  and  does  not 
arise  at  all  merely  frof/i  a  direction  to  divide  land,  unless  there 
is  also  a  power  of  sale  in  the  executor  or  trustee,  either  in  terms 
or  by  necessary  implication.- 

§  705.  Conversion  dopeiidin?  upon  a  contingency,  or  upon 
the  consent  or  request  of  a  legatee. —  In  view  of  the  rule  that 
a  direction  to  convert  must  be  positive  and  imperative  in  order 
that  it  shall  effect  a  constructive  conversion,  it  has  been  held 
that  a  direction  to  sell  land,  or  to  invest  money  in  land  upon 
a  contingency,  will  not  operate  as  a  conversion  until,  or  unless, 
actual  conversion  is  made.  This  rule  is  applied  where  a  sale 
of  land  is  to  take  place  upon  the  request  of  a  legatee,  or  Avith 
the  consent  of  the  beneliciar}'.' 

Thus,  where  land  was  to  be  sold  if  the  heirs  should  at  any 
time  agree  to  sell  it,*  or  where  a  will  provided  that  land  which 
was  devised  therein  should  be  sold  if  the  life  tenant  considered 
it  to  be  to  her  advantage  to  sell  it,  and  on  her  request  only,^  or 
where  the  testator  provided  that,  when  his  son  attained  full 
age,  he  should  either  have  a  farm  or  it  might  le  sold  and  the 
jyroceeds  should  he  paid  to  him^^  no  constructive  conversion  took 

iBrearly  v.  Brearly,  9  N.  J.  Eq.  St.  433,  437;  Henry  v.  McCloskey,  9 
(183.J).  21,  31;  Ex"rs  of  Vanness  v.  Watts  (Pa.),  145,  147;  Chew  v.  Nick- 
Jacobus  (1^40),  17  N.  J.  Eq.  153,  154;  lin.  10  Pa.  St.  131;  Washington  v, 
Delafield  v.  Barlow,  107  N.  Y.  535;  Abraham,  6  Gratt  (Va.)  GG;  Stoner 
Paist's  Api>eal  (Pa.,  1889),  17  Atl.  R.  v.  Ziuiinerman,  21  Pa.  St.  394,  402. 
«;  Fletcher  v.  Ashburner,  1  Bro.  C.  Cf.  PorterfieKl  v.  Porterfield,  85  Md, 
C.  497;  Durour  v.  Motteax,  1  Ves.  320;  633. 

Stagg  V.  Jackson,  1  N.  Y.  206;  Burr  An  option  in  trustees  to  sell  with 

V.  Sim,  1  Whart  (Pa.)  252;   Hill  v.  the  consent  of  the  testator's  widow 

Bean,  29  AtL  R  980,  86  Me.  200.  does  not  effect  a  conversion,  thougli 

-  Hobson    V.    Hale,   95   N.    Y.   5m:};  it  Ls  followed  by  an  ini|)erative  diroc- 

Hale  V.  Hale^   125   IlL  399:  Clarke's  tion   to   divider    the    estate    e(|ually 

Apixial,  70  Conn.  195,  483,  39  Atl.  R.  ainoii;;  certain  persons.    InreWintle, 

155,  162;  In  re  Bingham,  127  N.  Y.  Tucker  v.  Wintlo  (1896),  2  Ch.  711. 

296;  Lindley's  Ap[)eal,  102  Pa.  St.  235.  See  also  De  Beivuvoir  v.  Beauvoir,  3 

» Keller  V.  HariH*r.64Md.74;NaKle'8  IL  L.  Cas.  524;  Lucas  v.  Brandreth, 

Appeal,  13  Pa.  St.  260,  263;  Miller's  28  Beav,  273. 

Api)pal.  m  Pa.  St.  401.  107;  Irvin  v.  <  GrcMiough  v.  Small,   137  Pa.  St. 

I'at^dien,  30  Atl.   R  4:J6.  164   I'a.  St.  12M, 'JO  Atl.  R  128. 

M,  6.5,  35  W.  N.  C.  341;  In  re  Mache-  »In   re  Pyott's   Estate.  160  P:u  St. 

iner'H  Estalo.  130  Pa.  St.  514,  21  Atl.  411.  28  Atl.  R.  915.921. 

R   411;    Neely  v.  Grantham.  58   I'ji.  oAnewalfs  Appeal,  42  Pa.  St  414. 


070  JAW   OF   WILLS.  [§  705. 

place.  So  where  a  sale  is  to  be  made  witli  the  ^\Joint  conseiit 
and  ap2>7'ol>ation  of  a  liusband  and  his  wife,  and  not  without," 
no  conversion  takes  place  unless  both  consent.  And  not  only 
does  no  constructive  conversion  take  place  until  consent  is 
given,  but  if  the  consent  or  the  request  of  a  third  person  is  an 
(ibsohite  2'>r<'r<'quisite  to  an  actual  conversion  of  land  or  money, 
actual  conversion  without  his  consent  or  request  is,  as  to  him^ 
null  and  void.  The  property  in  its  changed  form  will  be  con- 
structively reconverted  into  its  original  condition  so  far  as  he 
is  concerned.^  But  where  the  direction  to  sell  land  or  to  in- 
vest money  is  positive  and  imperative,  or  where  the  general 
scheme  of  the  will  requires  a  constructive  conversion,  and  the 
provision  requiring  the  consent  or  the  request  of  another  is  de- 
signed merely  to  enforce  the  trust  and  obligation  to  convert 
and  to  protect  the  beneficiary,  the  property  will  be  construct- 
ively converted,  though  he  refuse  or  fail  to  request  or  to  con- 
sent.2  And  it  has  been  held  that,  where  the  limitations  of  the 
property  in  trust  are  only  applicable  to  real  property,  a  direc- 
tion to  invest  money  in  real  estate,  on  the  request  of  certain 
persons,  could  be  executed  without  request,  for  this  direction 
to  invest  on  request  was  evidently  intended  to  give  the  bene- 
ficiary the  power  to  enforce  the  direction  and  not  to  prevent  it 
from  being  carried  out.'  The  person  who  is  to  make  the  re- 
quest for  an  actual  conversion  will  not  be  permitted  to  refuse 
or  to  delay  making  the  request  to  the  prejudice  of  others'  in- 
terests.* And  if  he  shall  do  so,  or  if  he  shall  die  witliout  hav- 
ing made  the  request  or  given  his  consent,  equity  will  regard 
it  as  having  been  done  or  given^  and  will  decree  a  sale  or  a 
purchase  of  land  as  may  be  required,  with  a  constructive  con- 
version as  of  the  date  of  the  death  of  the  testator.^    The  death 

1  Davis  V.  Goodhue,  6  Sim.  585;  lu  diction  to  decree  a  sale  where  the 

re  Taylor's  Trust,  9  Hare,  596:  Sykes  consent  which  is  required  is  unrea- 

V.  Sheard,  33  Beav.  114.  souably  withheld,  and  the  court  has 

'^  Mellon  T.  Reed,  123  Pa.  St.  1,  15  also  the  power  to  determine  what  is 

Atl.  R  906:  Lechmere  v.  Carlisle.  3  a  reasonable  time  within  which  con- 

P.  W.  211,  219,  223;  Pulteney  v.  Dar-  sent  should  be  given.     In  re  Free- 

hngton,  1  Bro.  C.  C.  228,  238;  Thorn-  man's  Estate,  181  Pa.  St.  405.  409,  37 

ton  V.  Hawley,  10  Ves.  129;  Symons  Atl.  R.  591;  Act  April  18,  1853. 

V.  Rutter,  2  Vern.  227.  ■■■  In  re  Tweedie  &  ^^liles,  L.  R.  22 

'Thornton  v.  Hawley,  10  Ves.  129;  Ch.   D.   284.  27  Ch.  D.  315:   Lord  v. 

Triquet  v.  Tliornton,  13  Ves.  345.  Wight  wick,  4  De  Gex,  Mac.  &  G. 

*  Often  by  statute  equity  has  juris-  803,  6  H.  L.  Cases,  217. 


§§   706,  TOT.]  EQUITABLE    COXTERSION.  9T1 

of  the  person  who  is  to  give  his  consent  or  to  make  a  request 
may  prevent  the  actual  conversion  where  conversion  is  ahso- 
lutely  dependent  vpon  consent  or  request}  So  where  a  testator 
directs  the  sale  of  his  land  to  be  made,  but  only  upon  the  re- 
quest of  a  majority  of  persons  named,  a  majority  of  the  whole 
number  previously  named  is  required,  though  some  have  since 
died.2  And  finally  it  may  be  said  that,  where  a  power  to  sell 
lands  or  to  invest  money  in  lands  is  discretionary,  or  is  to  be 
executed  on  request  or  with  consent,  and  the  power  is  partially 
executed,  but  fails  of  a  complete  execution  either  by  reason  of 
the  death  of  the  trustee  or  of  the  person  who  is  to  give  con- 
sent, the  persons  absolutely  entitled  and  the  heirs  must  take  the 
land  in  its  partially  converted  condition,  they  taking  land  or 
money  as  it  is.^ 

§  706.  A  direction  to  sell  at  a  fixed  price. —  Whether  a  direc- 
tion to  sell  land,  providing  a  certain  price  can  be  obtained  for 
it,  shall  operate  as  a  constructive  conversion  of  the  land,  de- 
pends upon  the  intention  of  the  testator,  to  be  gathered  from 
the  whole  will.  If  a  sale  is  positively  forbidden  unless  the  par- 
ticular price  can  ha  obtained,  no  conversion  takes  place  until 
the  sale  is  in  fact  made.  But  if  a  sale  is  directed  to  take  phice 
as  soon  as  a  price,  which  is  specified,  can  be  obtained,  or  as 
near  that  price  as  may  be  possible,  it  has  been  held  that  a  con- 
structive conversion  takes  place,  the  limitation  in  price  being 
advisory  and  not  mandatory.* 

§  707.  The  effect  of  an  option  to  purchase  given  to  a  bene- 
ficiary.—  The  fact  that  the  testator  gives  a  devisee  of  land 
which  is  devised  either  to  him  or  to  others,  in  trust  for  sale, 

^In  re  Taylor's  Trust,  9  Ilaro,  59G;  certain  persons,  the  land  not  being 

Gulifik  V.  GriswoUi,  14  App.  Div.  ^5.  actually  devised  to  any  one,  creates 

-Crane  v.  B<jlles.  49  N.  .J.  Eq.  37^,  a  power  of  sale  b\'  implication  in 

24  Atl.  It.  2'M.  Where  land  is  K'ven  in  the  executors.     Potter's  Ex"i-k  v.  Ad- 

tnist  to  sell  to  pay  debts  and  then  to  riance.  44   N.  J.   Eq.   14,  14   Atl.   R 

Nineficiaries  abs<jlutely,  tlie  trustee  10,     Where  a  request  is  re(piired,  it 

can  exerciH«  his  jjower  of  sjile,  and  need  not  be  in  writing  nor  in  any 

h«5  can  convey  a  goo<l  title  withfmt  particular   form,     ]i<i(<erH   v,    Tyley, 

the  consent  of  the  iKjneflciarics.  un-  144  111.  TmL',  :{2  N.  R  R.  'Ml 
\cfvi  it  in  exf)rfSMly  rcfiuired,  so  Ion;;         ''Walter  v.  Mauiidc.  1!)  Ves.  424. 
as  the  ix')\vcr  of  hjiIo   Ik  ncccssjiry  to         <  Eord    v.    I'ord.   70   Wis.  (1SH7),  19, 

carry  out  tin-  trusts  in  the  will.     In  11  N.  W.  H.  10r)7;  Utiiliow  v.   McKiru. 

re  Dyson  (IH'HJi.  2  (;h.  720.     A  dircc-  111  N,  C.  2G:]. 
tion   to  K<;11   land   at  tlie  recjucsL  of 


972  LAW    OF    WILLS.  [§  708. 

an  option  to  purchase  it,  does  not,  where  it  is  a  mere  privilege  of 
buying  the  land,  prevent  a  constructive  conversion  as  of  the 
date  of  the  death  of  the  testator,'  where  tlie  direction  to  sell  is 
mandatory.  The  devisee  to  whom  the  option  is  given,  unless 
his  right  to  purchase  is  to  be  prior  to  that  of  any  and  all  other  per- 
sons, has  nothing  more  than  he  possessed  before.  Accordingly, 
where  a  testator  directs  that  his  executors  must  sell  his  land 
either  to  the  beneficiary  or  to  some  one  else,  the  direction  is 
immaterial,'-  though  if  he  directs  that  a  sale  of  the  land  shall 
depend  upon  the  choice  of  a  devisee  or  upon  any  other  con- 
tingency, as  where  the  testator  directs  that  beneficiaries  shall 
have  the  right  to  take  the  land  at  an  appraised  value  if  they 
can  agree  to  do  so,*  the  creation  of  such  an  option  will  prevent 
a  constructive  conversion  and  the  land  will  not  be  converted 
unless  it  is  actually  sold.* 

§  708.  Conversion  in  the  ease  of  land  contracted  to  be  sold 
by  the  testator. —  The  doctrine  of  conversion  applies  to  a  de- 
vise of  land  which  has  been  contracted  by  the  testator  to  be 
sold.  As  soon  as  land  is  contracted  to  be  sold  it  is,  in  equity, 
considered  as  converted  into  money  as  of  the  date  of  the  con- 
tract. So  where  a  testator  contracts  to  sell  land,  from  the  in- 
stant of  entering  into  the  contract  he  holds  the  legal  title 
solely  as  a  trustee  for  the  vendee,  and  his  general  or  specific 
devisee  of  that  land  can  only  take  the  title  the  testator  has, 
w^hich  is  subject  to  the  contract  of  sale.  The-  devisee  of  the 
land  is  a  trustee  for  the  vendee  of  the  testator.  Assuming  that 
the  contract  is  valid  and  binding  on  both  parties  at  the  death 
of  the  testator,  the  devisee  of  the  vendor  may  be  compelled  to 
transfer  the  legal  title  to  the  vendee,  and  he  cannot,  as  in  the 
case  subsequently  mentioned,^  claim  to  have  the  purchase-money 
paid  to  him  by  the  vendee.  That  must  be  paid  to  the  executor 
of  the  vendor  for  the  benefit  of  his  personal  estate,^  and  it  will 
pass  under  a  general  or  residuary  bequest  of  personal  property 
contained  in  the  will  of  the  vendor,  710  inatter  when  that  will 

1  Fahnestock  V.  Fahnestock,  152  Pa.  <Anewalt's  Appeal,  43  Pa.  St.  414, 
St.  (1893),  56,  G2;  Laird's  Appeal,  85    416.     See  ante,  %  705. 

Pa.  St.  339,  343.  5  §  709. 

2  Hammond  v.  Putnam,  110  Mass.  ^Knollys  v.  Shepherd,  1  Jaa  & 
(1872),  232.  Wal.  499;  Wall  v.  Bright,  1  Jac.  «fe 

3  Jones  V.  Caldwell,  97  Pa.  St.  42,  WaL  494;  Lawes  v.  Bennett,  1  Cox, 
46.    See  ante,  %  706.  166,  171. 


§  TOS.] 


EQUITABLE   CONVERSION. 


973 


was  executed.  Ilaving  been  contracted  to  be  sold  after  the  ex- 
ecution of  the  will  of  the  vendor,  the  land  Avill  be  regarded  as 
having  been  sold ;  and,  though  the  legal  title  has  not  been  con- 
veyed to  the  vendee,  the  devise  is  regardeil  as  adeemed,  and 
the  purchase-money  is  to  be  paid,  not  to  the  devisee  of  the 
land,  but  to  the  executor  of  the  vendor.^ 

If,  however,  neltlter  party  to  the  contract  has  a  right  to  have 
it  enforced,  there  is  no  conversion.  The  property  retains  its 
original  cliaracter  of  land.  The  executor  of  the  vendor  has 
then  no  right  to  the  purchase-money,  and  the  land  which  is 
comprised  in  the  invalid  contract  goes  to  the  heir  or  to  the 
specific  or  residuary  devisee.  So,  if  the  parties  have  agreed 
that  the  contract,  though  it,may  be  enforceable  in  equity,  shall, 
on  the  happening  of  some  event,  be  null  and  void,  and  that 
event  happens,  the  land  and  money  retain  their  original  state.^ 


1  Baden  v.  Pembroke,  2  Vera.  (1690), 
213;  Eaton  v.  Sanxter,  6  Sim.  517,  522; 
Farrar  v.  Earl  of  Winterton,  5  Beav. 
1,  8;  Watts  v.  Watts,  L.  R  17  Eq. 
217,  221;  In  re  Manchester  Company, 
19  Beav.  365,  369;  In  re  Dyke's  Es- 
tate, L.  R  7  Eq.  337,  312;'  Moor  v. 
Raisbeck,  12  Sim.  123;  Saunders  v. 
Kramer,  3  Dr.  &  W.  99;  McKinnon 
V.  Thompson,  3  Johns.  Ch.  (N.  Y.)  307; 
Wriglit  V.  Minshall,  72  111.  581;  Nevv- 
j>ort  Waterworks  v.  Sisson,  18  R.  I. 
411,  412,  28  AtL  R  336;  Craig  v.  Les- 
lie, 3  Wheat.  (U.  S.)  563;  Haughwout 
V.  Murphy,  22  N.  J.  Eq.  541,  536;  Liv- 
ingston V.  Newkirk,  3  Johns.  Ch. 
(N.  Y.)  312;  Williams  v.  Haddock, 
145  N.  Y.  144,  150,  157.  Cf.  Hunttjr 
V.  Mills,  29  S.  C.  72.  Contra  by  stat- 
ute in  Chad  wick  v.  Tatom,  9  Mont. 
354,  23  Pac.  R  729;  and  compare  Tay- 
lor V.  Hargrfxjve.  101  N.  C.  145,  7 
8.  E.  R  617;  In  r(3  Lefebvre's  Estiite 
(Wis.,  1898),  75  N.  W.  R  971.  After 
the  exocution  of  a  (contract  for  the 
Hale  of  land  the  vendee  ih  the  ec^ui- 
table  owner,  and  the  interest  of  the 
vemlor  is  converted  into  iKjrsoiialty; 
and  hence,  on  his  death,  the  pur- 
cliAsr;  jirico  beioriKH  to  his  residuary 
legatees  and  not  to  the  iKjrsons  to 


whom  he  has  specifically  devised  the 
land,  though  they  will  be  compelled 
to  execute  a  deed  to  the  vendee. 
Newport  Waterworks  v.  Sisson,  28 
Atl.  R  336. 

2  Attorney-General  v.  Day,  1  Yes. 
Sr.  218,  220.  Though  a  contract  for 
the  sale  of  land  provided  that,  on  the 
vendee's  failure  to  pay  the  price  at 
the  stipulated  time,  all  his  interests 
thereunder  shall  cease,  tiie  interest 
of  the  vendor,  on  his  deatii  before 
the  time  named  for  payment,  is  to 
be  treated  as  personalty,  there  being 
no  default  by  the  vendee.  Williams 
V.  Haddock,  39  N.  E.  R  825,  145  N.  Y. 
144.  "  It  is  very  clear  that  if  a  maa 
seized  of  real  estate  contract  to  sell 
it,  and  die  before  the  contract  is 
carried  into  execution,  it  is  personal 
linj|>erty  of  iiiiji.  .  .  It  seems  to 
me  to  make  no  distinction  at  all. 
Sujipose  a  man  should  bargain  for 
tJie  sale  of  timber  provided  the 
buyer  shouhl  give  proper  security 
for  the  payment  of  the  money;  this, 
when  cut  down,  would  bo  part  of 
the  personal  <'state,  although  it  de- 
jMjnds  upon  the  buyer  whi-ther  ho 
gives  the  seoirity  or  not  When  the 
I)arty  wJio  has  the  jnjwer  of  making 


974  I'AW    OF    WILLS.  [§  TOO. 

§  709.  Conversion  in  the  case  of  lands  contracted  to  be 
l)0ui::ht  by  the  testator. —  In  the  absence  of  statute  creating 
the  power  to  devise  after-acquired  hinds,  a  devise  inchided  only 
lands  to  which  the  testator  had  the  legal  title  at  the  date  of 
the  will.^  Hence,  if  at  the  execution  of  the  will  he  was  under 
contract  to  purchase  lands,  the  legal  title  to  which  he  had  not 
taken  at  his  death,  the  legal  title  did  not  pass  by  a  general  de- 
vise. The  equitable  title  of  the  testator  in  the  contract  passed 
to  the  residuary  devisee,  while  the  legal  title  at  his  death  passed 
to  his  heirs,^  whom  equity  would  treat  as  a  trustee  for  the  dev- 
isee. He  would  be  compelled  to  pay  the  purchase-money  to 
the  devisee.  Modern  statutes  conferring  power  to  devise  land 
acquired  subsequently  to  the  execution  of  a  will  have  obviated 
the  necessity  for  the  interference  of  equity  in  such  a  case.  If 
at  the  date  of  his  death  the  testator  is  under  a  binding  and 
valid  contract  to  purchase  land,  but  he  has  not  taken  title,  his 
general  or  residuary  devisee  may  claim  the  land  under  the  con- 
tract.' 

The  personal  property  of  the  testator,  which  would  have  paid 
for  the  land  had  he  survived,  is  regarded  as  constructively  con- 
verted into  land  as  of  the  date  of  the  contract,*  and  the  heir  or 
the  devisee  may  call  upon  the  executor  or  administrator  of  the 
vendee  to  pay  the  purchase-money  out  of  the  personal  estate.'* 

the  election  has  elected,  the  whole  is  ing  assented  to  the  devise,  the  legal 

refeiTed  back  to  the  original  agree-  title  to  the  land  became   at  once 

ment,  and  tlie  only  difference  is  that  vested  in  him  and  the  other  devisee, 

the  real  estate  is  converted  into  per-  and  the  executor  of  the  vendor  could 

sonal  at  a  future  period."    Lawes  v.  not  enforce  the  contract  against  him. 

Bennett,  1  Cox,  167,  on  p.  171  (1758).  Taylor  v.  Hargrove,  101  N.  C.  145,  7 

The  right  of  the  testator  to  sue  for  a  S.  E.  R.  647. 

breach  of  a  contract  to  sell  land,        ^  Ante,  §§  21,  61-64 

vvliich  is  pending  at  his  decease,  de-        ^  Greenhill  v.  Greenhill,  Pre.  Clu 

vulves  upon  his  executoi-,  and  not  320;  Green  v.  Smith,  1  Atkyns  (1783), 

upon  his  devisee  of  the  hind.     Irwin  572,  573;  Acherley  v.  Vernon,  9  Mod. 

v.  Hamilton,  6  Serg.  &  R  (Pa.)  208.  68,  78. 

A.  entered  into  a  contract  to  pur-        ^  Williams  v.  Hassel,  73  N.  C.  (1875), 

chase  land  of  the  testator.     Before  174,  177. 

the  conveyance  had  been  executed,        *  Whittaker  v.  Whittaker,  4  Bro.  C. 

or  the  purchase-mone}'  paid,  the  tes-  C.  30. 

tator  died,  having  devised  the  land        *  Broome  v.  Monck,  10  Ves.597,  612, 

to  A  as  tenant  in  common  with  an-  615;  Garnett  v.  Acton,  28  Beav.  333; 

other.    Tlie  court  held  that  A.  might  Langford  v.  Pett,  2  P.  W.  629,  G32; 

elect  to  lake  under  the  will  and  he  O'Shea  v.  Howley,  1  Jo.  &  Lat  398. 

might  repudiate  the  contract.    Hav- 


§  709.]  EQUITABLE    CONVERSION.  975 

So  where  an  owner  of  laud  bad  engaged  a  builder  to  erect  a 
house  upon  it,  and  pending  the  erection  of  the  house  the  owner 
died,  the  court  of  chancery  held  tbat  not  only  was  the  heir  en- 
titled to  the  house  completed,  but  that  he  might  call  upon  the 
administrator  of  the  ancestor  to  pay  for  it.^  And  if  the  devisee 
has  to  pay  it  out  of  his  own  pocket,  he  may  call  upon  the  executor 
to  reimburse  him.  But  at  the  present  time  by  statute  in  Eng- 
land,- and  in  many  of  the  states  of  the  American  Union,  the 
right  of  the  heir  or  a  devisee  to  call  for  the  exoneration  out  of 
the  personal  estate  of  land  which  descends  or  which  is  devised 
is  absolutely  abolished.  While  these  statutes  relieve  the  per- 
sonal estate  from  its  primary  burden  of  paying  the  purchase- 
money,  they  do  not  affect  the  principle  of  conversion,  and  the 
property  contracted  for  passes  as  land  under  the  will.  As  a 
result  of  the  conversion  of  personal  property  into  real,  which 
takes  place  as  soon  as  one  has  purchased  real  estate  though  he 
has  not  completed  the  payment  for  it,  the  money  is  regarded 
as  land,  irrespective  of  intention.  It  would  pass  under  a  general 
devise  of  land,  and  if  the  devisee  is  an  alien  w^ho  is  incompetent 
to  take  real  property  the  devise  would  fail,  though  the  alien  was 
competent  to  take  it  if  it  had  remained  personal  property,' 

But  it  must  always  be  proved,  in  order  that  the  personal  rep- 
resentative of  the  testator  shall  be  compelled  to  pay  for  the 
land,  that  the  testator  at  his  death  was  liable  to  an  action  on 
the  part  of  the  vendor  to  enforce  the  contract.  For  if  the 
Vendor  had  a  bad  title,  or  if  the  contract  was  not  binding  upon 
the  vendee,  or  if  it  would  have  been  set  aside  in  a  court  of 
equity,*  no  conversion  of  money  into  land  takes  place,  as  be- 
tween the  executor  of  the  vendee  and  tiie  devisee  of  the  vendee. 
X(jr  can  the  court  inquire  by  means  of  parol  evidencu;  into  the 
circumstances  to  ascertain  wiiether  the  testator  in  fact  intended 
to  complete  or  to  rescind  the  contract  for  the  purchas(^  of  th(5 
land;  for  the  fact  that  it  was  binding  at  his  deatli  is  conclusive, 

•Coo|)er  V.  Jarnian,  L.  R.  3  E<j.  08.  whore  a  tnistoo  is  directed  to  sell 

*  Locke  KitiK'H  Act,  17  &  IM  Vic,  luiid.  and,  witliout  uutliority,  buys  it 

c.  li:j;  30&31  Vic.c.  09;  40&  II  Vic,  for  himself,  if  hy  sustaiiiiiiK  the  act- 

c  34.  iial   conversion    the   interest  of  tho 

'Uarney  v.   DoiioIi'm*,   10  S.  W.  R.  ln-neliciaries  will    ho   prejudiceil    iu 

101,  U7  .Mo.  111.  the  hlJK'hU'st  di-«ree.     Kquity  will  di- 

♦It  may   Ik;  well    to   notp    in    this  rect    ii    (••mstniclive     reconversioiu 

placu  that  no  tonvcrhiou  taken  place  Ingle  v.  Kiiiiiuiis,  :.'.s  Ht'av.  IJOl. 


07G  LAW    OF   WILLS.  [§  710. 

irrespective  of  the  fact  that  circumstances  have  subsequently 
arisen  which  prevent  its  completion  by  the  executor.  If  the 
contract  could  have  been  enforced  against  the  testator  at  the 
time  of  his  death,  the  land  which  he  has  purchased,  or,  if  that 
cannot  be  conveyed  because  of  a  default  of  the  vendor,  then 
the  purchase-money  in  the  hands  of  the  executor,  belongs  to 
the  person  to  whom  the  testator  has  devised  the  land.  Thus, 
if  the  vendor  has  rescinded  the  contract  under  a  power  reserved 
to  him  therein,^  or  because  of  the  inability  of  the  executor, 
through  a  deficiency  of  personal  property,  to  pay  for  the  land 
on  the  day  when  title  was  to  pass,-  the  devisee  has  the  right, 
when  all  the  personal  assets  are  in,  to  require  the  executor  to 
pay  him  the  purchase-money  or  to  invest  it  in  his  name  in  other 
lands.' 

§  710.  Lands  devised  subject  to  an  option  to  purchase. — 
"Not  only  will  a  constructive  conversion  take  place  in  the  case 
of  a  bilateral  contract  for  the  sale  of  land,  which,  at  the  death 
of  the  testator,  is  binding  on  both  parties,  but  it  will  also  take 
place  where  a  sale  depends  upon  the  exercise  of  an  option  to 
purchase  given  by  the  testator.  If,  pending  the  exercise  of  the 
option,  the  testator  shall  die,  its  exercise  after  his  death  will 
have  a  retrospective  operation  and  effect,  and  will,  as  between 
his  heir  or  devisee  and  his  personal  representative,  convert  the 
land  as  of  the  date  of  the  giving  of  the  option.  Where  the 
land  on  which  the  option  to  purchase  had  been  given  is  devised 
to  A.,  and  all  the  personal  property  of  the  testator  is  given 
to  B.,  the  purchase-money,  when  paid  after  the  death  of  the 
testator,  will  be  regarded  as  personal  property  as  between  A. 
and  B.  If  the  devisee  has  been  compelled  by  the  holder  of  the 
option  to  convey  the  land  devised  which  was  subject  to  it,  he 
cannot  claim  the  purchase-money  which  goes  to  the  executor 
for  the  benefit  of  the  personal  estate.*    But  the  will  may  show 

1  Hudson  V.  Cook,  L.  R  13  Eq.  417.  contract  to  sell  land  which  descends 

2\Vhittaker  t.  Whittaker,  4  Bro.  or  which  is  devised  to  him  will  estop 

C.  C.  30,  31.  him  from  claiming  it  as  land,  though 

3  But  see,  contra,  Curre  v.  Bowyer,  he  had  the  right  to  repudiate  the  con- 

5  Beav.  6;  Haynes  v.  Haynes,  1  Drew,  tract  as  not  binding  under  the  stat^ 

6  Sm.  451,  452.  Compare  generally  ute  of  frauds.  Frayue  v.  Taylor,  10 
Frayno  v.  Taylor,  10  Jur.  (N.  S.)  119;  Jurist  (X.  S.),  119,  33  K  J.  Ch.  (N.  S.) 
Garnett  v.  Acton.  28  Beav.  333.    The    228. 

adoption  by  an  heir  or  devisee  of  a        *Lawes  v.  Bennett,  1  Cox,  166,  171. 


^    TIC]  EQUITABLE    COXVEKSION.  977 

an  intention  to  the  contrary.  Hence,  where  there  is  a  specific 
devise  of  the  property  by  its  name,  subject  to  the  option,^  and 
a  fortiori  "where  the  instrument  giving  the  option  contains  a 
direction  that  the  purchase-money  shall  be  paid  to  the  owner 
of  the  estate,"  the  purchase-money  must  be  paid  to  the  devisee 
of  the  land.  Assuming  that  the  devisee  of  the  land  or  the 
heir  may  be  deprived  of  it  by  the  exercise  of  the  option,  with- 
out the  right  to  require  the  holder  of  the  option  to  pay  him 
the  purchase-money,  it  is  very  unlikely  that  a  court  of  equity 
would  permit  the  holder  of  the  option  to  release  to  the  heir  or 
devisee  the  option  for  the  purpose  of  defrauding  the  residuary 
legatee.  While  the  legatee  of  the  owner  of  the  real  property 
has  no  equity  to  compel  the  holder  of  the  option  to  exercise 
it,  to  purchase  it  and  pay  for  it,  yet  if,  to  clear  the  land  from 
the  incumbrance  of  the  option,  the  devisee  and  the  holder 
of  the  option  enter  into  a  collusive  arrangement  by  which  the 
latter,  for  a  consideration  proceeding  from  the  former,  releases 
the  option,  the  latter  would  most  certainly  be  decreed  to  hold 
the  amount  thus  paid  as  a  trustee  for  the  personal  estate  of  the 
original  owner  of  the  land.  In  any  case  where  the  testator 
has  given  an  option  for  the  purchase  of  his  real  estate,  the 
rents  and  income  thereof  belong  to  that  person  who,  up  to  the 
time  of  the  actual  exercise  of  the  oj)tion,is  the  owner  of  the  real 
estate.  So  where  the  testator,  having  devised  his  personal 
property,  after  having  given  a  lessee  of  the  real  property  an 
option  to  purchase  it,  which  option  was  exercised  by  the  lessee 
after  the  death  of  the  testator,  though  the  purchase-money  was 
to  be  regarded  as  personal  estate  of  the  testator,  the  rents,  until 
the  actual  transfer  of  the  legal  title,  belong  to  his  heir  or  to  the 
devisee  of  the  land.' 

ComparealsoTownley  v.Bedwell,  It  Jur.  (N.  S.)  78."),  20  L.  J.  Ch.  019,  5 

Ves.  r/jl;  E.hvar.ls  v.'  West,  L.  IL  7  AV.  R  481;  (Joolil  v.  Teaguo,  7  W.  \L 

Ch.  D.  8.j8.  m:i;  Isaacs  v.  KeKinall,  8  81;  In  ro  Pylo,  V.i  Reiiorls,  ;{!)0,  1  Cli. 

Ii«;[)orts,  000,  ««;}  (1894),  H  Ch.  500.  (is!).")),  724.     Options  to  purchase,  par- 

'  iJratit  V.   Vauso,   1   Y.  &  0.580;  ticularly  wlicn;  they  an- attached  to 

P^iini.HS  V.  Smith,  2  Do  Gox  &  Sin.  722;  a  lease,  ^^eiierally  jiass  witii  tiiu  leaso 

\Vi!<j(lin;(  V.  Weeiliii^^,  1  J.  &  II.  .524,  to  tlio  personal  reiiresenlativo  of  tlio 

30  L.  J.  Ch.  OHi),  4  L.  T.  010.  lesse(>,  who  may  enforce  thenuif^ainst 

'^  In  ro  UniveH*  Minor,  15  Ir.  Ch.  li.  the  heir  or  dovisoo  of  the  lessor.     In 

.'357.  ro  Adams,  K   II.  27  Cli.  I).  ;J1I4.  402. 

'Townloy  v.  Hodwoll,  14  Ven.  591;  A  ground  rent  wliicli  is  ruiU'(*malilo 

und  comimrc  Collingwooil  v.  How,  'i  at  any  time,  at  tliu  option  of  tlio  teu- 
02 


97S 


LAW    OF    WILLS. 


[§  TIL 


^  711.  Conversion  in  the  case  of  land  talien  for  pnblie  use* 

"NVlicru  hmd  is  taken  by  a  I'ailroad  or  other  corporation  by 
virtue  of  the  riylit  of  eminent  domain  wliich  lias  been  delegated 
to  it  by  the  legislature,  it  becomes  important  to  determine  at  what 
date  the  land  is  converted,  in  order  to  ascertain  what  disposition 
shall  be  made  of  the  proceeds  where  the  owner  dies  before  the 
money  is  actually  paid  to  him.  In  England  it  has  been  both 
held  ^  and  denied^  that  a  notice  to  treat  for  land  given  by 
a  railroad  company  converts  it,  and  creates  the  relation  of 
vendor  and  vendee  between  the  parties.  The  negative  of  this 
proposition  would  seem  more  reasonable  than  the  affirmative, 
for  no  contract  can  exist  between  the  parties  until  an  agree- 
ment as  to  the  price  and  subject-matter  is  reached;  nor  can  the 
land  be  considered  as  actually  appropriated  until  an  actual 
entrance  is  made  upon  it  by  the  company.  Other  cases  have 
held,  therefore,  that  the  conversion  takes  place,  under  these 
circumstances,  only  when  the  value  of  the  land  is  fixed  in  proper 
legal  proceedings.^ 


ant,  is  realty  and  will  pass  as  such 
until  it  is  actually  redeemed.  In  re 
Wliite's  Estate,  1G7  Pa.  St.  206, 31  Atl. 
R  569.  Cf.  In  re  Hirst's  Estate,  147 
Pa.  St.  319.  But  it  has  also  been  held 
that  no  conversion  of  a  gi'ound  rent 
takes  place  wlien  it  is  paid  off  to 
trustees  without  choice  on  their  part 
tliough  they  had  a  power  of  sale.  In 
re  Ingersoll's  Estate,  167  Pa.  St.  536, 
36  W.  N.  C.  251,  31  Atl.  R  860.  In  Ed- 
wards V.  West,  L.  R.  7  Ch.  D.  858,  the 
court,  while  affirming  Lawes  v.  Ben- 
nett, refused  to  extend  its  applica- 
tion. The  conversion  which  is  made 
under  an  option  will  not  be  taken  to 
extend  by  retrospection,  prior  to  the 
date  of  the  option.  In  this  case  a 
lessee  had  an  option  to  purchase,  in 
a  fixed  time,  for  £15,200,  and  the  land- 
lord had  agreed  to  insure  for  £14,000. 
After  the  premises  had  been  burned 
and  the  insurance  money  paid  to  the 
landlord,  tlie  lessee  exercised  his  oj)- 
tion  and  claimed  the  insurance 
money  upon  the  ground  that  the 
conversion  related  back  to  the  date 


of  the  option,  and  that,  though  the 
property  had  been  actually  converted 
into  money  by  the  action  of  the  land- 
lord in  receiving  the  money  from  the 
company,  as  to  him  the  insurance 
money  ought  to  be  constructively 
reconverted  into  land.  The  court,  in 
deciding  against  liim,  distinguished 
this  from  a  case  arising  between  real 
and  personal  representatives  of  a  de- 
ceased person.  See  also  Reynard  v. 
Arnold,  L.  R.  10  Ch.  App.  386,  where 
tlie  disposition  of  insurance  money 
on  property  which  the  lessee  had  an 
option  to  purcliase  is  discussed. 

1  Regent's  Canal  Co.  v.  Ware,  23 
Beav.  573,  575,  582;  Stone  v.  Black- 
wall,  4  Myl.  &  Cr.  122;  Ex  parte 
Hawkins.  13  Sim.  569.  579;  Walker  v. 
Railway  Co.,  6  Hare.  594. 

2  Railway  Co.  v.  Woodhouse,  11  Jur. 
(N.  S.)  296;  Haynes  v.  Haynes,  1  Dr. 
&  Smale,  426,  430,  446;  Richmond  v. 
Railroad  Co.,  L.  R.  3  Ch.  App.  679, 
L.  R.  5  Eq.  352,  358.  Cf.  Ex  parte 
Arnold,  32  Beav.  591. 

3  Harding  v.  Railroad  Co.,  L.  Pu  7 


§  Til.]  EQUITABLE    CONVEKSIOX.  979 

If  the  company  and  the  owner  waive  all  judicial  proceedings 
looking  to  a  condemnation  of  the  land,  and  agree  upon  a  price 
for  the  land,  the  contract  is  then  complete,  and  the  land  is  con- 
Terted  from  the  date  of  the  agreement  as  in  the  case  of  an 
ordinary  contract  of  sale.^  So,  in  a  case  where  the  land-owner, 
having  devised  the  land,  agreed  with  a  railroad  company  to  sell 
it,  and  then  died  hrfore  receiving  the  inirchase-vioney^  but  with- 
out altering  his  Avill,  the  devise  is  adeemed  and  the  executor  is 
entitled  to  receive  the  purchase-money  from  the  company.'-  In 
the  United  States  the  cases  seem  to  turn  upon  the  question 
whether  or  not  the  land,  or  any  interest  in  the  land,  has  been 
actually  taken,  irrespective  of  whether  the  money  has  been  paid 
for  it  or  not.  If  the  land  has  been  actually  taken  it  will  be 
regarded  as  converted  into  personal  property  as  of  the  (kite  of 
the  taking,  and  if  the  owner  dies  and  the  money  is  paid,  the  pro- 
ceeds will  pass  as  personalty.'  If  the  owner  of  the  land  de- 
vises it,  and,  suljsequent  to  the  execution  of  the  will,  it  is  taken 
in  condemnation  proceedings,  and  the  testator  dies  before  re- 
ceiving the  money,  the  devise  will  be  adeemed,  and  the  proceeds, 
though  not  in  his  possession,  will,  when  paid,  go  to  his  executor.* 

An  order  of  a  court  of  competent  jurisdiction  directing  that; 
land  shall  be  sold  amounts  to  a  constructive  conversion  of  the 
land  as  of  its  date,  though  the  actual  sale  does  not  take  place 
until  long  subsequently  thereto.'^  After  the  entry  of  the  order, 
the  rights  of  all  the  parties  and  of  all  persons  ckiiming  under 
or  through  them  are  determined  upon  the  assumption  that; 
the  land  has  actually  heen  fiold,  unless  it  is  clearly  apparent  that. 
some  one  will  he  inequitaljly  treated  hy  this  asstDiiptiun.     This 

CIl  App.  ir,4:  Watts  v.  Watts,  L.  It  l)orouKli.  etc.  Co..  4  Cusli.  (Mass.)  407: 

17  Va{.  217;  Ilaynes  v.  Ilaynes,  1  D,  Iltjtclikiss  v.   Auburn  11.   K.  Co.,  3(> 

&  Sni.  420,  A:VX  Bail).  (N.  Y.)  600. 

•  P]x  parte  Ilaukins,  1.3  Sim.  "iflO,  <See  t^  708.     Wliere  property  <!(> 

TilH;  Na.sli  v.  Coinmissioncrs,   1  Jur.  viscil  in  trust,  the  inroino  only  to  bo 

(N.  .S.)!i7o;  Kx  partu  Ariiolil,."!2  Hcav.  i>ai<l  to  a  IjtMU'fu-iary,  is  soM  in  con- 

591.  <l<Mmia(ion   proceedings,  the   niom-y 

2  In  re  Mauf  liostor  Co.,  19  Hf-av.  :{fi.l  is  not  income  to  bo  paiil  to  a  ben«- 

'  WclleH  V.  Cowles,  4  Conn.  (1822),  liciarj'.  but  a  capital  to  l)o  helil  under 

182;  I'arker  v.  ("liestnutt,  80  Go.  12,  tlie  oriKinuI  trust     (lilison  v.  C»M)ke, 

T,  S.  R  IL  289;  Pwjria.  etc.  Co.  v.  Hice,  1  Met.  (.Mass.)  75, 70;  Holland  v.  Cruft. 

75  III.  :{29;  Satterflebl  v.  Crow.  8  H.  y  (Jray  H!9  Masa.  18.55).  102.  IHO. 

Mon.  (Ky.)  5.5:J;  NVal  v.  Knox.  et<-.  MIy»'tt  v.  Meaken,  I...  R  25  Cli.  D. 

Co.,  01  Ma  298;  lioynton  v.   Tetir-  7:J5. 


9S0  LAW    OF    AVILLS.  [§  712. 

rule  of  a  constructiYC  conversion  by  court  order  before  an  act- 
ual sale  is  applicable  to  the  property  of  a  person  who  is  com- 
petent to  manage  his  own  affairs.  Thus,  where  an  order  that 
land  shall  be  sold  in  partition  has  been  made,  and  subsequently 
thereto,  but  hefore  the  sale,  a  party  to  the  action  dies,  his  share 
of  tbe  land  will  be  treated  as  personal  property  as  between  his 
heir  and  his  next  of  kin  if  ho  were  intestate,  and  as  between 
his  devisee  and  his  executor  if  he  has  died  after  making  a  will. 
The  deceased,  having  the  capacity  and  being  absolutely  en- 
titled, could  have  disposed  of  the  ultimate  proceeds  of  the  sale 
to  any  person  he  might  have  chosen,  eitiier  as  money  or  as 
land ;  but  when  he  has  neglected  to  elect,  equity  will  follow 
the  law  —  it  will  go  to  his  next  of  kin. 

The  question  as  to  the  disposal  of  the  proceeds  of  the  sale  of 
land  owned  by  infants  and  other  incompetent  persons  often 
comes  before  courts  of  equity.  In  the  former  case  the  land 
was  converted  with  the  consent  of  the  competent  ow^ner,  or,  at 
least,  his  failure  to  dispose  of  it  was  an  estoppel  upon  those 
who  represent  him;  while  in  the  latter  case  the  deceased  o\vner 
was  absolutely  unable  to  take  any  action  in  the  matter  at  all. 

§  712.  Conversion  by  an  order  of  court  of  land  belonging 
to  an  infant  or  a  lunatic. —  Land  which  is  owned  by  a  person 
who  is  non  compos  mentis  or  which  belongs  to  an  infant  is  fre- 
quently directed  to  be  sold  by  an  order  of  a  court  having  com- 
petent jurisdiction,  either  in  a  direct  proceeding  brought  for 
the  purpose  by  the  committee  or  guardian  of  the  incompetent 
person,  or  in  a  collateral  action  to  which  the  incompetent  is  a 
party.  The  question  may  then  arise  either  as  between  the  next 
of  kin  and  the  heirs  of  the  incompetent  person  if  he  has  died 
intestate  before  acquiring  or  regaining  competency;  or  in  the 
construction  of  his  will,  if  he  dies  testate,  whether  the  proceeds 
of  the  sale  of  the  land  shall  be  treated  as  personal  projierty  or 
as  constructively  reconverted  into  land. 

The  jurisdiction  of  equit}'^  over  the  estate  of  an  incompetent 
person  is  exercised  solely  and  exclusively  to  protect  his  prop- 
erty interests.  The  court  in  making  orders  for  the  disposition 
of  his  property  is  not  in  any  way  concerned  as  regards  the  in- 
terests of  those  who  stand  in  the  relation  of  expectant  owners 
of  such  property  on  the  death  of  its  present  owner,  but  will 
confine  its  action  to  the  protection  and  preservation  of  the 


§   712.]  EQUITABLE    CONVERSION.  9S1 

property  rights  of  the  person  under  its  care  "wlio  is  either  in 
law  or  in  fact  unable  to  protect  and  defend  his  own.  The  rep- 
resentative of  the  incompetent  person  will,  in  the  absence  of 
statute,  therefore,  upon  his  decease  receive  the  property  in  it£> 
actual  condition  at  that  period.  But  in  England  it  is  expressly 
provided  by  statute,^  that,  in  the  case  of  a  sale,  mortgage, 
change  or  other  disposition  of  a  lunatic's  land,  after  answering 
the  purpose  for  which  the  change  has  been  directed,  the  sur- 
plus is  to  be  taken  as  of  the  same  nature  and  character  as  the 
estate  sold  or  otherwise  disposed  of.  The  proceeds  of  the  sale 
of  the  real  estate  of  the  lunatic  are  to  be  held  as  real  property 
by  his  committee,  and  on  his  death,  unless  he  shall  recover  and 
elect  to  take  the  property  converted,  the  money  realized  from 
a  sale  of  his  real  property  will  devolve  as  land  upon  his  heir.^ 
In  the  United  States,  so  far  as  the  matter  is  not  expressly 
regulated  by  statutes  which  are  similar  in  their  provisions  and 
operation  to  the  English  enactment  mentioned,  land  or  per- 
sonal property  actually  converted  by  judicial  order  during  the 
existence  of  the  incapacity  will  retain  the  new  character  im- 
pressed upon  it,  and  will  devolve  as  such  upon  the  successors 
of  the  lunatic.  A  devise  of  land  by  the  lunatic  in  a  will  exe- 
cuted before  the  appointment  of  a  committee,  or  even  after- 
wards, where  it  is  shown  that  he  possessed  testamentary  capac- 
ity,' will  be  annulled  ij?so facto  by  a  sale  of  the  land  under  an 
order  of  the  court,  and  the  proceeds  will  pass  as  personal  ])rop- 
erty.* 

J  Lunacy  Regul.  Act,  1853,  IG  and  to  the    heirs  at  hiw  of  the  infant. 

17  Vict.,  c.  70,  119.  Wetlierili  v.  Ilougli,  52  N.  J.  Eci.  083, 

2  In  re  Stewart,  1  Sra.  &  Gif.  ?>-l,  39:  CsS,  29  Atl.  R.  592. 

In  re  Ba^ot,  31  L.  J.  Ch.  772;  In  re  3  See  gi;  97,  98. 

3Iary  Siaitli,  L.  R.  10  Ch.  App.  79,  84;  *  A  testator  who  was  cntitldl  to  a 

In  re  liarker,  L.  It.  11  Ch.  D.  241;  In  ground  rent  devised  it  to  several,  one 

re  Sko;^;,'s,  2  De  Gex,  J.  &  S.  533 ;  Dixie  of  wlioni  was  a  lunatic.    The  legatees 

V.  Wrij^lit.  32  IJeav.  0(52;   Kelland  v.  released  it  to  tlie  testator's  grantee 

Fulford.L.  R6Ch.  D.491:  In  re  Whar-  under  a  covenant  by  him  to  do  so, 

ton,  5  De  0«'X,  M.  &  G.  33;  Sinitli  v.  tlie  coininittet!  of  tiio  lunatic  having 

lijiyright,  34  X.  J.   Ivj.  421;   Jacdhiis  i)r«)cuied  tlie  iM-rniissioii  of  the  court 

V.  Jji«-ohiis,  30  N.  J.  Ivj.  2IH.     When  t<»  join  therein,     //r/f/,  that  the  luna- 

the  real  estate  of  an  infant  is  con-  ti<-'s  share  was  jx-rsonal  property  and 

verted  into  money  hy  onler  fjf  f«)urt,  w(<nt   to   his  administrator    on    his 

and  the  infant  diis  Ixffore  attaining  death.     In  re  Hirst's   Kstate,  147  I'ju 

its  majority,  the  fun<l  will  he  treat. -d  St.  319,  23  Atl.  IL  155. 
U.4  roiil  estate,  ami  aM  sueh  de.s<'end 


^982  LAW    OF    WILLS.  [§  712. 

In  all  these  cases,  in  wliicli  the  actual  conversion  of  the 
property  of  an  incompetent  person  has  been  permitted  by  the 
court  of  equity  to  result  in  its  appropriate  results  so  far  as 
the  devolution  of  the  property  was  concerned,  it  will  be  found 
that  there  was  no  equity  existing  in  favor  of  a  consty^uctive  re- 
•conversion.  That  is  to  say,  it  will  be  found  that  neither  the 
incompetent  person  himself  was  deprived  of  any  right  or  privi- 
lege in  relation  to  his  property,  nor  that  there  was  any  living 
person  who  was  in  anywise  prejudiced  l)y  allowing  the  prop- 
erty which  had  been  altered  in  its  character  to  continue  to  re- 
tain the  new  character  which  had  been  imposed  upon  it  by 
the  order  of  the  court.  The  English  cases  insist  that  the  neces- 
sity for  a  constructive  reconversion  shall  appear  in  order  that 
it  shall  be  decreed  where  the  character  of  land  or  personal 
property  is  altered  by  an  order  of  a  court.  Thus,  in  the  case 
of  land  or  personal  property  belonging  to  an  infant,  the  actual 
character  of  which  is  changed  by  an  order  of  a  court,  no  con- 
structive reconversion  takes  place  unless  there  he  an  equity  for 
a  reconversion}  But  as  an  infant  may,  in  some  cases,  dispose 
of  his  personal  property  by  will  before  he  attains  majority, 
while  he  is  not  capable  of  devising  his  real  propert}'  before  he 
attains  majority,  equity  ma}^  decree  a  constructive  reconver- 
sion where  the  property  of  an  infant  was  converted  by  an 
order  of  the  court.  To  refuse  to  do  this  and  to  hold  that  the 
property  was  absolutely  converted  would,  in  the  case  of  the 
investment  of  money  in  land,  deprive  him  of  the  power  of  be- 
queathing personalty  which  the  law  gave  him,  Avhile  in  the 
case  of  the  sale  of  land  it  would  confer  upon  him  a  power 
not  recognized  by  the  law.-     The  same  rule  is  applicable  in 

1  Steed  V.  Preece,  L.  R.  18  Eq.  192,  ford,  L.  R.  6  Ch.  D.  491.     When  per- 

"where  land  of  which  an  infant  was  sonal  property  of  an   infant  is  in- 

a  joint  tenant  in  tail  with  another  vested  by  his  guardian  in  real  estate, 

was  sold.     The  infant,  who  would  either  by  authority  of  a  court  or 

have  been  entitled  to  the  money  ab-  upon  the  guardian's  own  responsi- 

solutely  on  his  attainment  of  major-  bility,  the  character  of  such  projv 

ity.  died  under  twenty-one,  and,  on  erty  is  not  changed,   but  it  is  re- 

his  co-tenant  claiming  his  share,  tlie  garded  as  being  still  personal  estate, 

court  held  that  he  had  no  equity  and  for  the  purpose  of  distribution  on 

that  the  land  had  been  converted  the   infant's  death,  and  otherwise, 

for  all  purposes.  Decree  (Sur.,  1897),  46  N.  Y.  S.  908,  20 

-Ex  parte  Phillips,   19   Yes.    122;  Misc.  R.  582.  affirmed;  In  re  Bolton, 

Rook  V.  Worth,  1  Ves.  461:  Ware  v.  50  N.  Y.  S.  1105. 
Polhill,  11  Ves.  278;  Kelland  v.  Ful- 


I   713.]  EQUITABLE    CONVEKSION^.  9S3 

the  absence  of  statute  in  the  United  States.  Thus,  where  real 
estate  which  is  owned  by  several  tenants  in  common,  one  of 
whom  is  an  infant,  is  sold  in  a  partition  suit,  the  portion  of 
the  proceeds  of  the  sale  belonging  to  the  infant  owner  will  re- 
tain its  original  character  as  real  property,  and  as  such  will 
not  pass  under  a  residuary  clause  in  his  will.'  The  proceeds 
of  the  land  sold  in  partition  devolve  u])on  the  heir-  of  the  in- 
fant as  money,  and  on  his  death  they  go  to  his  personal  repre- 
sentatives and  not  to  his  heirs  at  law,'  But  a  statute  regulating 
partition  proceedings  which  expressly  provides  that  a  judgment 
of  sale  shall  be  conclusive  on  the  parties  and  that  the  distribu- 
tive shares  of  all  parties  shall  be  paid  to  them,  their  guardians 
or  personal  representatives,  clearly  indicates  that  the  proceeds 
of  the  sale  are  to  be  considered  money  for  all  purposes,  and, 
on  the  death  of  the  infant  party  in  partition,  it  is  to  be  dis- 
tributed and  regarded  as  personal  property.* 

§  713.  The  effects  of  a  constructive  conversion. —  TThere 
money  is  directed  or  agreed  to  be  invested  in  land,  or  land  is 
to  be  sold  and  turned  into  money,  the  property  which  is  dealt 
with  will,  by  its  constructive  conversion,  have  imposed  upon  it 
all  those  qualities  which  adhere  to  that  species  of  propertv  into 
which  it  is  directed  or  contracted  to  be  converted.  Thus,  land 
which  is  constructively  converted  into  money  will,  upon  the 
death  of  a  legatee,  go  to  his  next  of  kin  under  the  statute  of 
distribution.  Where  the  legatee  is  a  married  wonum,  her  share 
of  land  which  is  constructively  converted  vests  as  personal  prop- 
erty at  the  death  of  the  testator  in  her  husband,  who  may  at 
common  law  claim  it  as  personal  property,  though  the  land 
was  not  in  fact  sold  until  after  her  death.* 

>  Horton  v.  McCoy,  47  N.  Y.  21,  27;  ^Green  v.  Johnson,  4  Bush  (Ky.), 

and  compare  Wetherill  v.  Hough,  52  104;    R^iwlinj?    v.    Lamles,    2    Bush 

N.  J.  K<i.  Os:{.  29  Atl.  R.  592;  Foster  (Ky.),  15H.  101;  Thomas  v.  Wood,  1 

V,  V'y^icr,  L.  li.  1  Ch.  D.  5H8.    See  also  M.I.  Ch.  290,  299;  Jolinson  v.  Beiuu'tt. 

jKtxt.  %  IV.i.  ;J9  Barl).  (N.  Y.)  2:57,  241;  Troctor  v. 

-  UVtlKTill  V.  Ilougli,  Hiijtrn.  l\'n>\»'i\  1  In-d.  (N.  C.  INKO.  Kq.  1 1;{. 

3  Fidh-r  V.  Iliggins,  21  N.  J.  Va\.  i;J8;  147;  >k-( 'hire's  Appeal.  72  Pa.  St.  114. 

Snowliill  V.  Snowliill.  '.\  N.  J.  Kq.  20;  Tliis  is  tlie  rule,  tliougli  tlie  proceeds 

Shuinxvay  v.  (,"<KifK*r,  10  Barh.  (N.  Y.)  of  tlie  wile  of  land  were  not  paid  to 

•VjO;  March   v.    Berrier,  0    Ired.    Va\.  tlio    liushand    until   iifftr  tlie  ado|)- 

<N.  ('.)  524;  Mordaunt  v.  BiMiweil,  L.  lion  of  a  statute  which  deprives  him 

It  19  Ch.  I).  ;}02.                   '  of  the  control  of  his  wife's  iM>rsonal 

♦  B«'arh  v.  Simmons,  55   Atk.    1H5,  pro|M'rty.     Bi'uImiw  v.  Moore,  19  S.  F. 

18  s.  W.  R  9:w.  li.  i:>(\,  114  N.  c.  '^^y,l 


984: 


LAW    OF    WILLS. 


[§  ns. 


Personal  property  constructively  converted  under  a  will  by 
a  direction  that  it  shall  be  invested  in  land  does  not  pass  by 
a  bequest  of  personal  property,  general  or  residuary.^  Cut 
money  which  is  thus  constructively  converted  will  pass  under 
a  general  or  residuary  devise  of  land,  or  of  my  land,  or  of  real 
estate,  in  the  will  of  him  to  whom  it  is  devised.^  On  the  other 
hand,  where  the  land  is  converted  constructively  into  money, 
with  a  direction  to  pay  all  or  a  part  of  the  proceeds  to  a  lega- 
tee, he  may  bequeath  it  by  a  will  disposing  of  his  personal 
property.  The  share  of  the  proceeds  given  to  him  will  pass 
imder  a  general  or  residuary  bequest  of  his  personal  property ;  * 
while  if  he  shall  die  intestate  it  w^ill  go  to  his  administrator 
for  the  benefit  of  the  next  of  kin.*  Eeal  property  which  has 
been  constructively  converted  into  personal  property  by  a  con- 
tract to  sell  or  by  an  imperative  direction  to  sell  will  pass  as 
personal  property  under  the  will  of  an  infant  who  is  entitled 
to  share  in  it,  though  the  infant  is  incompetent  to  make  a  will 
disposing  of  bis  lands.^    It  was  held  at  a  very  early  date  that 


J  Edwards  v.  Countess  of  "Warwick, 
2  P.  "Wms.  171;  Gillies  v.  Longlands, 
4  DeGex  &  Sm.  372;  Chandler  v.  Po- 
cock,  L.  R  l.j  Cb.  D.  491;  Cookson  v. 
Cookson,  12  CI.  &  Fin.  121.  If  it  is 
described  as  the  vioney  left  me  by- 
will,  or  as  certain  money  directed  to 
be  invested  in  land,  it  will  pass  as 
money. 

2Lingen  v.  Sowray,  1  Peere  Will- 
iams (1710),  172;  Hickman  v.  Bacon, 
4  Bro.  C.  C.  833;  In  re  Scarth,  L.  R 
10  Ch.  D.  499;  Chandler  v.  Pocock,  L. 
R  15  Ch.  D.  491,  499;  Lechmere  v. 
Earl  of  Carlisle,  3  P.  W.  311;  Guidot 
V.  Guidot,  3  Atk.  254,  256;  Rashleigh 
V.  Master,  1  Ves.  Jur.  201,  note  p.  205; 
Wall  V.  Colsbead.  2  De  Gex  &  Jo.  683; 
Biddulph  V.  Biddulph,  12  Ves.  161; 
Green  v.  Stephens,  17  id.  64,  77,  12 
Ves.  419;  Green  v.  Johnson,  4  Bush 
(Ky.),  164;  Gott  v.  Cook,  7  Paige  (N.  Y.), 
521,  524;  Hawley  v.  James,  5  Paige 
(N.  Y.),  318.  443.  Moneys  impressed 
with  a  trust  to  invest  in  land  will 
pass  under  a  devise  of  land;  but 
•where  the  money  may  be  invested 


anywhere  in  the  country,  it  will  not 
pass  under  a  devise  of  land  in  a  cer- 
tain place.  In  re  Duke  of  Cleve- 
land's Estates  (1893).  3  Ch.  244. 

3  Allen  v.  Watts,  98  Ala.  384:  Elliott 
V.  Fisher,  12  Sim.  505,  506;  Stead  v. 
Newdigate,  2  Mer.  521;  Spencer  v. 
Wilson,  L.  R  16  Eq.  501;  Gover  v. 
Davis,  29  Beav.  222,  225. 

4Loftis  V.  Glass,  15  Ark.  680;  Mad- 
dox  V.  Dent,  4  Md.  Ch.  543;  Smithers 
V.  nooper,  23  Md.  273;  Wurts  v.  Page, 
19  N.  J.  Eq.  365;  Fisher  v.  Banta.  66 
N.  Y.  468,  476;  Hood  v.  Hood,  85  N.  Y. 
561 ;  Van  Vechten  v.  Keator,  63  N.  Y. 
52;  Moncrief  v.  Eoss,  50  N.  Y.  431; 
Jones  V.  Caldwell,  97  Pa.  St.  43.  46; 
Eby's  Appeal,  84  Pa.  St.  241;  Wilkins 
V.  Taylor,  8  Rich.  Eq.  (S.  C.)  291; 
Ashby  V.  Palmer,  1  Mer.  296;  Burton 
v.  Hodsoll  (1827),  2  Sim.  24,  32:  Briggs 
V.  Andrews,  5  Sim.  424,430;  Griffiths 
V.  Ricketts,  7  Hare,  299;  Hardey  v. 
Hawkshaw,  12  Beav.  252. 

5  Horton  v.  McCoy,  47  N.  Y.  21.  27; 
Harcum  v.  Hudnall,  14  Gratt.  (Va.) 
369,  374;  Allen  v.  Watts,  98  Ala.  384, 


§  T14.] 


EQUITABLE    CONVERSION. 


985 


money  which  had  been  directed  to  be  invested  in  land  for  the 
benefit  of  A.  in  fee  would,  upon  A.'s  death,  descend  to  her 
heirs,  and  that  her  husband  was  entitled  to  an  estate  by  cur- 
tesy therein.^  But,  as  the  widow  is  not  entitled  to  dower  in 
equitable  estates,  in  the  absence  of  a  statute,  she  could  not, 
until  the  passage  of  the  Statute  3  and  4  Wra.  lY,  c.  105,  claim 
her  dower  in  money  which  was  directed  to  be  converted  into 
an  estate  in  lands  in  fee  simple.-  Land  which  is  converted  by 
a  direction  to  sell,  and  to  pay  the  proceeds  over  to  legatees, 
cannot  be  sold  as  land  under  lien  of  an  execution  obtained 
against  a  legatee^  either  before  or  after  the  actual  conversion.^ 
§  714.  Dower  aud  curtesy  in  property  eouverted. —  The 
English  courts  of  equity  very  early  decided  that  a  husband  was 
entitled  to  an  estate  by  the  curtesy  in  money  directed  to  be 
laid  out  in  land  prior  to  the  actual  conversion.  In  an  early 
case  money  was  directed  to  be  laid  out  in  land  by  a  father,  and 
settled  to  the  use  of  his  daughter.  She  married  and  had  a  child, 
but  before  the  land  could  be  purchased  she  died.  The  chan- 
cellor permitted  the  husband  to  have  an  estate  for  his  life  in 
the  money.*  This  decision  was  subsequently  followed  and  af- 
firmed in  chancery  as  a  well  recognized  rule.^    Although  the 


11  S.  R.  646;  Tazewell  v.  Smith,  1 
Rand.  (Va.,  1823),  313;  Pratt  v.  Talia- 
ferro, 3  Leigh  (Va.,  1832).  419.  The 
will  of  an  infant,  though  it  may  be 
valid  to  carry  personal  property,  is 
not  valid  to  carry  money  wliich  has 
been  directed  to  be  laid  out  in  land. 
Earlom  v.  Sanders,  Amb.  241;  Carr 
V.  Ellison,  2  Kro.  C.  C.  56.  See  also 
J;  712,  anto.  The  beneficiaries  of  a 
devise  of  land  wliich  has  been  con- 
structively converted  into  money  as 
of  the  death  of  the  testator  may,  in 
their  dealings  among  tluMnsclves, 
convey  it  without  the  formalities 
which  are  requisite  in  conveying 
land  under  the  statute  of  frauds. 
Howell  V.  Mellon  (Pa.  St,  18y8),  42 
Atl.  R  0. 

'  Sw<M'tai)ple  V.  pjjndon,  2  A'crri. 
(ITO.'o,  Wfi;  ( 'uiiningham  v.  Mr»<>dy,  I 
V.w.  Sr.  171;  Dodwjn  v.  Hay,  3  Uro. 

(;.  c.  401. 


2Seei50.sf.  §714 

=•  Baker  v.  Copenbarger,  15  111.  103; 
Willing  V.  Peters,  7  Pa.  St  (1847), 
287,  290;  Jones  v.  Caldwell,  97  Pa,  St. 
(1881),  43,  46;  Roland  v.  Miller.  100 
Pa.  St  47,  51;  Hunter  v.  Anderson, 
152  Pa.  St.  386,  390;  Evans'  Appeal, 
63  Pa.  St  183. 187;  Paisley  v.  Ilolzshu, 
83  Md.  325.  330;  Brolaskey  v.  Oally. 
51  .'Pa.  St  509;  Allison  v.  Wilson,  13 
S.  &  R.  (Pa.)  333:  ^Morrow  v.  Breni- 
zer,  2  Rawie  (Pa.,  1833),  185:  Stuck  v. 
I^fackey,  4  Watts  &  S.  (Pa..  1S42).  496. 
Contni,  Sayles  v.  Best,  35  N.  E.  R. 
636,  140  N.  Y.  368,  construing  a  stat- 
ute providing  that  expectant  estates 
are  alienable. 

*  Sweetai)plo  v.  Bindon.  2  Vern.  586. 

6  Olway  v.  Hudson,  2  Vern.  383,  385; 
Fletcher  V.  Asliburner,  1  Bro.  C  C 
497,  49H;  Cuniiiiigham  v.  IMoody,  1 
Ves.  Sr.  174,  176;  Dods^n  v.  Hay.  3 
Bro.  <'.('.   IIM;    lt.iiiisdeii   v.  ljii:gli«y, 


0S6  LAW    OF   WILLS.  [§  715. 

general  principle  that  a  wife  might  be  endowed  of  equitable 
interests  was  repeatedly  recognized,  the  courts  of  equity  were 
slow  to  permit  her  to  enforce  her  right  of  dower  in  money  which 
was  to  be  laid  out  in  land  for  the  benefit  of  her  husband,  and 
which  had  not  actually  been  converted.  No  decision  is  to  be 
found  in  the  English  reports  in  which  the  wife's  right  to  dower 
in  the  money  is  sustained.  On  the  contrary,  it  was  expressly 
repudiated  by  equity  in  every  case  where  the  question  arose.' 
At  length  the  matter  was  settled  by  statute  3  and  4:  William 
IV,  c.  105,  which  provided  that  if  any  husband  who  died  ben- 
eficially entitled  to  any  land  to  the  extent  that,  if  it  were  a 
legal  interest,  his  wife  could  claim  dower  at  law,  she  shall  have 
her  dower  in  his  interest.  Under  this  statute,  and  under  sim- 
ilar statutes  in  the  various  states  of  the  Union,  the  widow  of 
the  beneficiary  of  money  converted  into  land  is  entitled  to  her 
dowser  therein.  The  converse  case,  w^here  land  is  to  be  con- 
structively converted  into  money,  is  clear.  As  soon  as  the  con- 
structive conversion  occurs,  the  money  is  free  from  the  dower 
of  the  widow  of  the  beneficiary.-  So,  it  may  be  remarked  in 
conclusion,  to  further  illustrate  the  statements  of  the  text,  that 
the  widow  of  a  person  who  has  entered  into  an  absolute  and 
binding  contract  to  purchase  land  is  entitled  to  dower  therein 
on  the  death  of  her  husband,  though  he  has  died  before  the 
legal  title  to  the  land  has  vested  in  him  by  the  delivery  of  the 
deed.'' 

§  715.  The  failure  of  the  purpose  of  a  conversion  —  Re- 
conversion.—  "Where  a  testator  directs  land  to  be  converted 
by  a  sale,  it  will  be  presumed,  in  the  absence  of  all  proof  of  a 
contrary  intention,  that  he  intended  the  conversion  solely  to 
carry  out  his  testamentary  purpose,  and  if  for  any  reason  that 
purpose  fails,  so  that  the  money  w^ill  not  pass  under  the  will, 

2  Ves.  536;  Follett  v.  Tyrer,  14  Sim.  Eq.  37;  Cook  v.  Cook,  20  N.  J.  Eq.  375; 

125.  Willing  v.  Peters,  7  Pa.  St.  287,  290; 

1  Crabtree  v.  Bramble  (1747),  3  Atk.  Hunter  v.  Anderson,  152  Pa.  St.  380, 

680, 687 ;  Cunningham  v.  Moody  (1748),  390. 

1  Ves.  Sr.  174;  Fletcher  v.  Ashburner  3  Robinson  v.  Miller,  1  B.  Mon.  (Ky.) 

<1779),  1  Bro.  C.  C.  497;  Park  on  Dower,  93;  Reed  v.  Whitney,  7  Gray  (Mass.), 

136;  1  Roper  on  Husband  and  Wife,  533;  Lobdell  v.  Hayes,  4  Allen  (Mass.), 

356;  Leigh  &  Dalziel  on  Equity  Conv,  187;  Young  v.  Young,  45  X.  J.  Eq.  27; 

62;  1  Fonbl.  Eq.  420;  1  Scribner  on  Church  v.  Church,  3  Sandf.  Ch.  (N.  Y.) 

Dower,  453.  434;  Smiley  v.  Wright,  2  Ohio,  512. 

-  Berrien  v.  Berrien  (1834),  3  N.  J. 


§  n5.] 


EQUITABLE    CONVERSION. 


os: 


a  constructive  reconversion  Avill  take  place  in  equity;  the  pro- 
ceeds of  the  Land  sokl  will  be  regarded  as  land,  and  the  exec- 
utor cr  trustee  will  hold  them  in  trust  for  the  heir  of  the  tes- 
tator, if  it  was  disposed  of  in  a  residuary  clause,  or  for  the 
residuary  devisee,  if  otherwise.^ 


1  Johnson  v.  Hilfield,  82  Ala.  127, 
128:  Crerar  v.  Williams,  1-15  111.  62-3, 
34  N.  E.  R.  407;  Haggard  v.  Rout,  6 
B.  Mon.  (Ky..  1845),  24-5,  249:  Went- 
worth  T.  Read,  166  IlL  139,  46  N.  E. 
R  777;  Trippe  v.  Frazier,  4  Har.  & 
J.  Old.,  1819).  446:  Lusk  v.  Lewis,  32 
Miss.  (1856),  297;  Drew  v.  Wakefield, 
54  Me.  291 ;  Holland  v.  Cruft,  3  Gray 
(Mass.),  162,  180;  Oberle  v.  Lercli,  18 
X.  J.  Eq.  346,  affd  575;  Smith  v.  First 
Church.  26  N.  J.  Eq.  132;  Cook  v. 
Cook,  20  X.  J.  Eq.  375,  377;  :Moore  v. 
Robbins,  53  N.  J.  Eq.  (1894),  137:  Hand 
V.  Marcy,  28  N.  J.  Eq.  59,  65;  Roy  v. 
Monroe.'  20  Atl.  R.  481,  47  N.  J.  Eq. 
(1890),  3.56:  Smith  v.  Kearney.  2  Barb. 
Ch.  (N.  Y.)  533:  Wood  v.  Keyes,  8 
Paige  (N.  Y.),  365,  369,  370:  McCarty 
V.  Terry,  7  Lans.  (X.  Y.)  236:  Bogert 
v.  Hertell,  4  Hill  (X.  Y.).  492,  495.  500; 
Jackson  v.  Jansen,  6  Jolms.  (1810).  73, 
81:  Hawley  V,  James,  5  Paige,  213, 
318,  444.  4.%;  Arnold  v.  Gilb-rt,  5 
Barb.  (X.  Y.)  190,  195;  Giraud  v. 
Giraud,  58  How.  Pr.  175,  182:  Betts 
V.  Betts,  4  Abb.  X.  C.  (1876),  317,  419; 
Gott  V.  Cook,  7  Paige  (X.  Y.),  532,  542: 
Marsh  V.  Wheeler.  2  Edwards,  156, 
IVJ;  Dei)eyst«r  v.  Clendining,  8  Paige 
<X.  Y).  295;  Lee  v.  Tower.  12  X.  Y.  S. 
24().  .56  Hun,  606;  Lindsay  v.  Plejis- 
ants,  4  Ired.  (39  X.  (.".,  1846),  E<i.  320, 
323;  Procter  v.  Fere  bee,  1  Ired.  Eq. 
14.3,  146:  Wharton  v.  Shaw.  3  Watts 
(Ph.,  IK'A),  ]^>4;  Wilsrjn  v.  Hamilton. 
OS^-rt'.  &  H.  (Pju,  1H23).  424;  Burr  v. 
Sim,  1  Wliart.  (Pa.)  2.52.  262;  App.-ii 
of  Wf-ntz,  17  Atl.  li  875.  l20  Pa.  St. 
r.41,  24  W.  X.  (J.  201;  In  re  Worsloy's 
KHtate.4  Pa.  Dist.  It.  177.  36  W.  X.  C. 
247;  Monnx!  v.  Joriiv*.  H  It.  I,  .526; 
North  V.  Valk.  Dud.  (.S.  C.)  Eq.  212; 
liewolf  V.  I^iw.Hon.  61   Wis.  477,  47H 


(1SS4);  Rinehart  v.  Harrison,  1  Bald. 
C.  C.  177;  Craig  v.  Leslie,  3  Wheat. 
(16  U.  S.)  562.  563,  582;  Collins  v. 
Wakeman,  3  Ves.  Jr.  683;  Williams 
v.  Williams,  5  L.  J.  (X.  S.)  Ch.  84: 
Roberts  v.  Walker,  1  R.  &  My.  752; 
Amphlett  v.  Park,  2  R.  &  My.  221; 
Johnson  v.  Woods,  2  Beav.  409;  Shall- 
cross  V.  Wright.  12  Beav.  505;  Hop 
kinson  v.  Ellis,  10  Beav.  169;  Gordon 
V.  Atkinson,  1  De  G.  &  S.  478;  Tay- 
lor V.  Taylor.  3  De  Gex,  i\I.  &  G.  190; 
City  of  London  v.  Garway  (1706),  3 
Vern.  571;  Levet  v,  Xeedham  (1690), 
2  Vern.  138;  Hewitt  v.  Wriglit,  1 
Bro.  C.  C.  86,  90,  note;  Robinson  v. 
Taylor,  2  Bro.  C.  C.  589,  595;  Ackroyd 
V.  Smithson,  1  Bro.  C.  C.  503;  Cruse 
T.  Barley.  3  P.  W.  20;  Yates  v.  Comp- 
ton,  2  P.  W.  308:  Star  key  v.  Brooks. 

I  P.  W.  390;  Robinson  v.  Taylor,  1 
Ves.  44,  2  Bro.  C.  C.  589;  Collins  v. 
AVakeman,  2  Ves.  Jr.  mi  687;  Eyro 
v.  Marsden,  2  Keen,  564 ;  Barley  v. 
Eveh-n,  16  Sim.  290;  Buchanan  v. 
Harrison.  1  J.  &  H.  662;  Williams 
v.  Coade,  10  Ves.  500,  505;  Chitty  v. 
Parks  (1793),  3  Ves.  271.  4  Bro.  C.  C. 
411;  Halliday  v.  Hudson  (1796),  3 
Ves.  210;  Ripley  v.  Waterworth,  7 
Ves.  425,  435,  note;  Marsh  v.  Smith, 
17  Ves.  29,  32;  Berry  v.  Usher  (1SU5). 

II  Ves.  H7.  91;  Stanley  v.  Stanley.  16 
Ves.  491;  Watson  v.  Hayes,  5  My.  & 
Cr.  125;  Clark  v.  Franklyn,  4  K  «& 
J."  257;  Jessopp  v.  Watson,  1  My.  & 
K.  6(»5;  Tregonwell  v.  Sydenliain,  3 
Dow.  196;  Sit't  v.  ("hattaway,:!  Ht-av. 
570;  Ik'ciive  v.  Hodgson,  10  11.  L.  C 
6.50.  "  When',"  sjiifl  l^)rd  EMon,  in 
1H1:j.  ill  Hill  V.  ('<M-k.  1  VeH.  &  Bea. 
17H.  175,  "a  testator  means,  witli  ro- 
garti  to  a  parti<Mihir  pur|>ose.  to  cori- 
viTl  Ills   real  cslalr!   into  |MTsoiiaI,  if 


9S8  LAW  OF  WILLS.  [§  715. 

The  principle  of  reconversion  is  apj)lio(l  in  tlio  case  of  a  sale 
of  land  wliicli  has  been  directed  for  an  unhiwful  purpose;  as, 
for  example,  where  a  sale  is  directed,  and  the  proceeds  are  to 
be  paid  to  a  charitable  institution  which  is  incapable  of  taking, 
either  because  of  its  own  character  or  because  the  devise  is 
Toid  by  reason  of  the  testator's  (loath  occurring  within  a  month 
after  the  execution  of  the  will.'  So,  too,  where  the  testator 
orders  his  land  to  be  sold  and  the  proceeds  to  be  devoted  to  a 
purpose,  the  execution  of  which  does  not  exhaust  the  proceeds, 
the  balance  will  be  constructively  reconverted  and  result  to 
the  heir.-  So  the  principle  bringing  aliout  a  constructive  re- 
conversion is  also  applicable  with  like  force  to  a  case  in  which 
the  testator  has  directed  that  lands  devised  in  trust  shall  be 
sold  and  the  income  of  the  fund,  which  is  the  result  of  the 
sale,  shall  be  paid  to  his  widow  during  her  life  for  her  support, 
but  the  testator  has  omitted  to  dispose  of  the  proceeds  of  the 
sale  after  the  death  of  his  widow.  He  is  intestate  as  to  it, 
though  it  does  not  devolve  upon  the  testator's  next  of  kin. 
Though  it  has  been  sold,  yet  the  money  is  land  so  far  as  the 
heir  is  concerned,  and  continues  to  be  regarded  as  such  in 
equity  from  the  date  of  the  death  of  the  testator.^   Thus,  where 

that  purpose  cannot  be  servefl,  the  503,    decided    by    Lord    Chancellor 

court  will  not  infer  an  intention  to  Thurlow  in  the  j^ear  1780.     In  that 

convert  the  estate  for  any  other  pur  case  a  residue  of  real  and  personal 

pose  not  expressed."  property  was  left  in  trust  for  sale 

iln  re  Fox,  63  Barb.  (N.  Y.)  157,  and  to  pay  in    legacies.     Some  of 

160;  Burr  v.  Sim,  1  Whart.  (Pa.)  252,  the    legacies    lapsed    by  the    death 

262:  Read  v.  Williams,  26  N.  E.  R.  of  the  legatees.    Prior  to  that  case, 

730,  125  N.  Y.  560;  Appeal  of  LetT-  if  land  was  sold  under  an  explicit 

berry,  17  Atl.  R.  447,  125  Pa.  St.  513;  direction  for  its  sale  and  the  pur- 

Hovey  v,  Adams  (Mass.),  27  N.  E.  R.  pose  of  the  sale  failed,  the  money 

659;  Attorney-General  v.  Lord  Wey-  resulting  from  the  sale  of  the  land 

mouth,  Amb.  20;  Jones  v.  Mitchell,  was  personal  property  and  went  to 

1  Siui.  &  St.  294;  Hopkinson  v.  Ellis,  the  next  of  kin  or  the  residuary  leg- 

10  Beav.  169;  Hamilton  v.  Foot,  6  Ir.  atee.     Under  the  rule  laid  down  in 

R.  Eq.  572,  that  case,  when  a  conversion  of  land 

-Moore  v.  Robbins,  32  Atl.  R,  379,  into  money  is  necessary  and  a  por- 

53  N.  J.  Eq.  472.  tion  of  the  object  fails,  the  part  of 

3  Wilson  V.  Major,  11  Ves.  205.   The  the  money  unexpended  is  regarded 

rule  of  a  resulting  trust  in  favor  of  as  constructively  reconverted  unless 

the  heir,  and  a  constructive  recon-  it  is  clearly  apparent  that  the  inten- 

version  of  land  directed  to  be  sold,  tion  of  the  testator  was  to  convert 

■was  first  established  in  the  case  of  the  land  out  and  out. 
Ackroyd  v.  Smithson,  1  Bro.  C.  C. 


§§   710,  TlGa.]  EQUITABLE    COXTEKSIOJS".  9S9 

the  testator  directed  that  land  sh.oukl  be  sold  for  the  support 
of  his  widow  aud  family,  and  it  turned  out  that  the  personal 
property  was  sufficient  for  the  purpose,  the  proceeds  of  the 
land,  when  sold,  went  to  the  lieir.^ 

§  716.  Resulting  trust  for  the  benefit  of  the  next  of  kin. 
The  rule  of  resulting  trusts  is  applicable  to  money  which  is  di- 
rected by  the  testator  to  be  invested  in  land  and  the  devise 
fails.  AVhere  the  purpose  of  the  investment  in  land  fails, 
whether  partially  or  wholly,  a  resulting  trust  will  arise  in  the 
land  itself,  if  it  has  been  purchased,  and  it  will  go  as  money, 
not  to  the  heir,  but  to  the  next  of  kin  of  the  testator.  Some  of 
the  early  cases  in  the  English  courts  of  equity  favored  a  dis- 
tinction between  land  directed  to  be  sold  and  money  directed 
to  be  invested  in  land,  and  would  permit  a  resulting  trust  for 
the  heir  in  the  former  on  the  failure  of  the  testator's  purpose, 
though  not  for  the  benefit  of  the  next  of  kin  in  the  latter;  but 
the  distinction  was  usually  expressed  as  mere  dieta,  and  at 
length  it  was  absolutely  repudiated  by  Lord  Cottenham-  as 
a  distinction  which  was  not  supported  by  reason,  and  which, 
being  unjust  to  the  next  of  kin,  would  not  be  permitted  to  exist. 
In  such  case  it  has  been  held  that,  where  the  will  contains  a 
residuary  bequest,  the  money  directed  to  be  laid  out  in  land  for 
a  purpose  which  fails  or  is  void  shall  go  to  the  residuary  lega- 
tee;'  and  where  the  next  of  kin  become  entitled  to  the  land 
in  which  the  personal  property  of  the  testator  has  been  in- 
vested, they,  take  it  as  real  estate,  and  it  goes  to  their  heirs  or 
devisees.  Their  next  of  kin  cannot,  after  their  deatii,  have  it 
constructively  reconverted.* 

§  71Cii.  The  nature  ol  tlie  property  in  wliith  a  reconver- 
sion is  had  for  the  benefit  of  the  Iieir. —  The  question  may 
arise  betwec-n  the  heir  and  the  personal  re[)resentatives  ol"  :ni 
heir  in  wlioso  favor  a  reconversion  is  had,  as  to  the  loini  in 
which  the  property  shall  devolve  upon  them,  and  u  liicli  ol' 
them  shall  be  entithid  to  it.  If,  in  ])nrsiian('('  olan  imperative 
<lirection  to  sell  land,  an  actual  sale  has  taken  [»laee,  and  there 

'  rjourley  v.  CumplwII,  GO  N.  Y.  109,  Eyro  v.  I^Iarsden,  2  Ko(3n,  501;  IJiiw- 

17J.  0  Hun,  218.  ley  v.  Jiuncs.  5  I'lUKe  (N.  Y.),  818. 

2C>jj^n   V.   SUfVftns.   1    n<'!iv.   483,  <  Curtoi.s  v.  WoriiiaM,  10  L.  li.  CIi. 

483,  .-i  L.  J.  (N.  8.)  Ch.  17.  Div.  ITZ. 

'  Hereford  v.  Itiivenliill,  "j  lieu  v.  ."il; 


900  LAW   OF   WILLS.  [§§  717,  718. 

is  a  jxu'f/'d  fiiilin'o  of  tlie  tostaiiicntary  purpose  to  carry  out 
which  the  sale  was  necessary,  a  trust  results  to  the  heir  in  the 
money  arising  from  the  sale  of  the  land  which  he  takes  as 
inon<ij.  ]lis  representatives  will  take  the  property  as  it  i* 
found  on  his  death.  The  proceeds  of  the  sale  will  pass  as  per- 
sonal property  under  his  will,  and  if  he  shall  die  intestate  they 
will  go  to  his  next  of  kin.^  If,  lio\v(n"er,  the  sale  of  no  portion 
of  the  land  Ix'conies  necessar}''  by  reason  of  the  total  failure  of 
the  purpose  for  which  the  conversion  was  directed,  and  all  the 
hind  remains  unsold,  it  vrill  descend  to  the  heir  as  land,  and 
his  heirs  and  not  his  next  of  kin  will  take  it  as  such.  His  will 
passes  it  under  a  general  or  residuary  devise  of  his  lands.  If 
the  trustees  sell  \vhere  there  is  an  al)Solute  and  complete  fail- 
ure of  the  purposes  of  the  trust,  the  proceeds  of  the  sale  must 
be  constructively  reconverted  and  the  money  will  go  to  the 
heir  as  land.-  The  distinction  lies  between  a  complete  and  a 
partial  failure  of  the  object  which  is  to  be  attained  by  a  con- 
version. 

§  717.  Conflict  of  lav.  s  in  relation  to  equitable  conversion. 
The  court  of  equity  within  whose  jurisdiction  the  land  in  ques- 
tion is  located  has  exclusive  power  to  determine,  by  construing 
the  will,  whether  an  equitable  conversion  was  intended  by  the 
testator.  That  court  is  in  no  wise  bound  by  the  judgment  of 
a  foreign  court  which  has  determined  that  the  land  has  or  has 
not  been  converted ;  but  may  proceed  to  decide  the  question  by 
the  laws  of  its  jurisdiction  irrespective  of  what  has  been  else- 
where determined.^ 

§  718.  Double  conversion  defined. —  Double  conversion  oc- 
curs where  land  is  directed  to  be  sold  and  the  proceeds  are  to 
be  reinvested  in  other  land.  The  rules  and  principles  govern- 
ing the  subject  of  equitable  conversion,  as  explained  in  this 
chapter,  are  applicable  to  a  case  of  this  sort.  From  the  time 
the  land  is  sold  until  the  money  which  is  realized  thereby  is 
reinvested  in  the  other  land,  it  will  be  regarded  in  equity  as 

•Smith   V.  Claxton,  4  Madd.  484;  2 Davenport  v.   Coltman,   12  Siin. 

Dixon  V.  Dawson,  2  Sim.  &  Stu.  327;  GIO;   Cooke  v.  Deal.y,  22  Beav.   190. 

Jessop  V.  Watson,  1  My.  &  K.  660;  See  also  Wood  v.  Skelton,  GSim.  170; 

Wilson  V.  Coles,  28  Beav.  215;  Wall  Buchanan  v.  Harrison,  IJ.  &  H.  673. 

V.   Colshead,  2   De  Gex  &  Jo.  OS;];  3  Appeal  of  Clark,  70  Conn.  19r>,  48:3, 

Attorney-General  v,  Lomas,  L.  It,  9  39  Atl.  R.  Vyy,  Ford  v.  Ford,  80  Mich. 

Exch.  29.  42,  44  N.  W.  R.  188. 


•19.] 


EQUITABLE    CONVEKSIOIf. 


OKI 


land,  and  will  devolve  as  such.^  If  the  power  to  sell  the  land 
and  to  reinvest  the  proceeds  is  to  be  exercised  only  in  case 
there  shall  be  an  opportunity  to  sell  at  a  price  named,  or  to 
buy  particular  propert}',  or  upon  any  other  contingency,  the 
doctrine  of  doable  conversion  does  not  appl3^- 

§719.  Election  to  take  the  property  unconverted. —  The 
power  of  the  testator  to  enforce  a  new  character  upon  land  or 
personal  property  by  a  direction  to  sell  or  to  invest  gives  rise 
to  a  constructive  conversion;  but,  on  the  other  hand,  this  con- 
structive conversion  may  be  determined  by  the  person  or  per- 
sons wJio  actually  oicn  ahsolutdy ^  or  are  'beneficially  entitled 
absolutely,  to  the  jjroperty .  The  ultimate  and  absolute  owner,  if 
sui  juris,  by  electing  to  take  the  property  in  its  existing  state 
before  it  has  been  actually  sold  if  it  was  land,  or  invested  in 
land  if  personalty,  may  put  an  end  to  the  constructive  conver- 
sion. As  equity  will  do  nothing  in  vain,  the  court  will  not  com- 
pel the  trustee  to  sell  or  to  invest,  for  the  beneficiary  who  is 
absolutely  entitled  may  immediately  reconvert  the  property.* 


1  Sperling  v.  Toll,  1  Ves.  70;  Pear- 
son V.  Lane,  17  Ves.  101;  Haggard  v. 
Rout,  6  B.  :Mon.  247,  249  (184o);  Ford 
V.  Ford,  80  :\Iich.  42,  44  N.  W.  R.  1057; 
Dewolf  V.  Lawson,  61  Wis.  477,  478. 

^  Ford  V.  Ford.  SU  Mich.  42,  44  N.  W. 
R  10.")7.  Tiie  prociH'ds  of  laud  which 
has  LM.*en  sold,  and  which  are  await- 
ing reinvestment  in  land,  will  not 
pa.ss  under  a  devise  of  all  the  testa- 
tor's land  where  a  part  only  of  the 
lands  has  been  sold,  but  the  land 
which  has  not  been  sold  will  pass. 
In  re  Pedder.  5  D.  :^L  &  G.  890. 

'  In  re  Cotton's  Trust,  L.  R.  19  Ch. 
D.  024,  028;  (;roi)l.-y  v.  Cooper.  7  D.  C. 
220:  aflinned,  19  Wall.  (U.  S.)  107; 
Brfx.riif  V.  Curry,  19  Ala.  80.",  (1H."»1); 
\hi  Vaughan  v.  Mcr>er«»y,  H2  (jia.  0H7, 
10  S.  K.  R.  211;  Man.llebauiii  v.  Mc- 
Donnell. 29  Mich.  (1H74),  78,  H7;  Peo- 
ple V.  I>iase,  71  111.  Apj).  ;{H0.  :{9:j; 
(ji'si  V.  FlfK;k,  2  N.  J.  K(i.  (18:W),  21; 
Iliilnr  v.  iJonoghue,  49  N.  J.  Va\.  125, 
2:j  AtL  R.  49.');  Reed  v.  Undcrhill.  12 
Barb.  (N.  Y.)  li:J;  (^uin  v.  Skinn-r. 
49  Barb.  (N.  Y.,  1807),  1132;  Aniihtrong 


V.  McKelvey,  104  N.  Y.  179;  Tazewell 
V.  Smith,  1  Rand.  (Va.)  313  (1823); 
Laird's  Appeal,  85  Pa.  St.  329;  Ross 
V.  Drake,  37  Pa.  St.  373;  In  re  Cun- 
ningham, 20  Atl.  R.  714.  137  Pa.  St. 
021,  27  W.  N.  C.  05;  Battersby  v. 
Castor,  37  Atl.  R.  572,  181  Pa.  St.  555; 
Kirknian  v.  Miles,  13  Ves.  338.  The 
power  of  sale  is  forever  terminated 
by  the  election  of  the  beneliciaries  to 
take  the  land  as  land.  McDonald  v. 
O'Hara.  34  N.  Y.  S.  092,  13  Misc.  R. 
527;  Smith  v.  Farmer  Tyj)e  Co..  17 
Misc.  R  311. 41  N.  Y.  S.  788,  40  X.  Y.  S. 
350.  "The  principle  upon  which  the 
whole  of  this  doctrine  is  fouiith^d  is, 
that  a  court  of  ecpiity.  regarding  Iho 
sul»stance  and  not  th(5  mere  forms 
and  (Mrcumstances  of  agreements 
and  other  instruments,  considi-rs 
things  directed  or  agreeil  to  1h)  dono 
as  having  been  actually  performed, 
where  nothing  has  intervetuMl  which 
ought  to  prevent  u  performance. 
This  qualification  (,f  the  mon^  coii- 
<-is<(  iitid  gener.il  rul»>  that  equity 
considi  IS  that  t<i  be   iloiie  which   is 


LAW    OF    ^YILLS. 


[§  720. 


§  720.  >Vlio  may  elect  to  take  the  property  iiiicon verted. 

The  person  who  is  to  take  property  unconverted  must  be  sui 
jui'i^}  An  infant  cannot  elect  unless  upon  clue  judicial  in- 
tpiiry  and  under  the  direction  of  the  court,  and  only  when  it 
is  ascertained  that  an  election  will  be  for  his  benefit.'^  Neither 
can  a  lunatic  himself  elect,  nor  his  committee  elect  for  him.' 
In  the  absence  of  an  enabling  statute,  a  married  woman  was 
clearly  incompetent  to  elect  by  deed  to  take  land  or  money 
unconverted.*  Bat  by  coming  in  equity  and  being  properly 
examined,  the  court  of  equity  had  power  to  elect  for  her  in 
respect  to  the  property  settled  to  her  separate  use.    But  this 


agreed  to  be  done  will  comprehend, 
the  cases  which  come  under  this  head, 
of  equity."  "Thus,  where  the  whole 
beneficial  interest  in  the  money  in 
the  one  case,  or  in  the  land  in  the 
other,  belonj^s  to  the  person  for 
whose  use  it  is  given,  a  court  of 
equity  will  not  compel  the  trustee 
to  execute  the  triLst  against  the 
wishes  of  the  cestui  que  tnist,  but 
will  permit  him  to  take  the  money 
or  the  land,  if  he  elect  to  do  so,  be- 
fore the  conversion  has  actually 
been  made;  and  this  election  he  may 
make  as  well  by  acts  or  declarations, 
clearly  indicating  a  determination 
to  that  efifect,  as  by  application  to  a 
court  of  equity.  It  is  this  election, 
and  not  the  mere  rigiit  to  make  it, 
which  changes  the  character  of  the 
estate  so  as  to  make  it  real  or  per- 
sonal, at  the  will  of  the  ]>erson  en- 
titled to  the  beneficial  interest.  If 
this  election  is  not  made  in  time  to 
stamp  the  property  with  a  character 
different  from  that  which  the  will  or 
other  instrument  gives  it,  the  latter 
accompanies  it,  with  all  its  legal  con- 
sequences, into  tiie  bands  of  those 
entitled  to  it  in  that  character.  So 
that  in  case  of  the  death  of  the  cestui 
que  trust  without  having  determined 
his  election,  the  property  will  pass  to 
his  heirs,  in  the  same  manner  as  it 
would  have  done  had  the  trust  been 


executed  and  the  conversion  actu- 
ally made  in  his  life-time."  By  the 
court  in  Craig  v.  Leslie,  3  Wheat. 
(16  U.  S.)  563,  on  page  578,  by  Wash- 
ington, J. 

1  Craig  v.  Leslie,  3  Wiieat.  (16  U.  S.) 
568, 578;  Beadle  v.  Beadle,  3  McCrary, 
C.  C.  (U.  S.,  1881),  586;  Emens  v.  St. 
John,  79  Hun,  101;  Fluke  v.  Fluke, 
16  K  J.  Eq.  (1863),  478,  481;  Osgood 
V.  Franklin,  2  John.  Ch.  (N.  Y.)  21; 
Reed  v.  Underbill,  13  Barb.  (N.  Y.) 
113;  Hetzel  v.  Barber,  69  N.  Y.  1,  14; 
Holt  V.  Lamb,  17  Ohio  St.  (1867),  874; 
Story,  Eq.,  §  793;  Turner  v.  Davidson, 
80  Va.  841,  849. 

2  Carr  v.  Branch,  85  Va.  597  (1889), 
8  S.  E.  R.  476;  Hetzel  v.  Barber, 
supra;  Burr  v.  Sim,  1  Whart.  (Pa.) 
252, 263;  Carr  v.  Ellison  (1785),  2  Bro. 
C.  C.  56,  2  Dick.  790;  In  re  Harrop,  3 
Drew.  726,  734;  Van  v.  Barnett,  19 
Ves.  102;  Robinson  v.  Robinson,  19 
Beav.  494,  496. 

3  In  re  Wharton,  5  De  Gex,  M.  & 
J.  33;  In  re  Barber,  L.  R.  17  CIl  Div. 
241 ;  Ashby  v.  Palmer,  1  Mer.  296. 

*  Cunningham  v.  Moody,  1  Ves.  174; 
Sharp  V,  St.  Sauveur,  L.  R.  7  Ch.  App. 
343;  In  re  Davidson,  L.  R.  11  Ch.  D, 
341;  Oldham  v.  Hughes,  2  Atk.  452, 
453;  Frank  v.  Frank,  3  My.  &  Cr.  171; 
Forbes  v.  Adams,  9  Sim.  462;  Spen- 
cer V.  Harrison,  L.  R  5  Com.  PL  Div. 
97. 


m.-] 


EQUITABLE    CONVERSION. 


903 


election  was  not  by  deed,  but  by  a  decree  of  the  court.'  But 
now,  both  in  England  and  in  the  United  States,  by  virtue  of 
the  statutes  conferring  the  power  upon  a  married  woman  to 
control  the  disposition  of  her  property,  real  or  personal,  she 
may  elect  by  deed.^ 

§  7'21.  All  persons  at  interest  ninst  concur  in  electing. — 
"Where  land  is  notionally  converted  by  a  direction  to  sell  and 
to  divide  the  proceeds  among  several  persons,  there  can  be  no 
election  to  take  the  land  as  such  unless  all  agree.  Some  can- 
not take  the  land  as  land,  and  others  have  a  portion  sold  and 
the  money  paid  to  them ;  for  to  permit  this  would  inevitably 
result  in  depreciating  the  value  of  the  land  to  be  sold,  and  in 
reducing  the  shares  of  those  who  elect  to  take  in  money.' 
These  objections  do  not  apply  in  the  case  of  money  given  to  be 
invested  in  land  for  several  persons  as  tenants  in  common,  and 
iiny  one  of  the  legatees  may  take  his  share  in  money  without 
the  concurrence  of  the  others;  for  the  balance  of  the  fund  may 


1  Oldham  v.  Hughes,  2  Atk.  (1743), 
412,  433;  In  re  Davidson,  11  Ch.  Div. 
341;  Pratt  v.  Taliaferro  (1«32).  3 
Leigh  (Va.),  419,  424;  McClanachan 
V.  Siter,  2  Gratt.  (Va.)  280;  Turner  v. 
Dawson,  80  Va.  841,  849.  Cf.  Walker  ■ 
V.  Denne,  2  Ves.  Jr.  170,  182. 

-  Briggs  V.  Chamberlain.  11  Hare 
<18.j3),  69;  May  v.  Roper,  4  Sim.  300: 
Forhe.s  v.  Adams,  9  Sim.  462:  Bowj-er 
V.  W(X)dnian.  L.  R.  3  Eq.  313;  Baker 
V.  Coix^nhargor,  15  111.  103,  lO.");  Rice 
V.  Baxter,  1  Watts  &  Serg.  (Pa.)  4.'i5. 

3Rin«ihart  v.  Harrison,  I  Bald.  C.  C. 
(L'.  S..  1830),  177,  1H«:  Craig  v.  Leslie, 
y.  Wh.iat.  (10  U.  S.)  .'377.  M.".;  High  v. 
AV(^rley,  33  Ala.  (1858 1, 190,  199;  Swann 
V.  Currett.  71  Oil  'm,  509,  570;  Do 
Vaughn  v.  McLeroy,  82  (Ja,  0H7,  095 
( 1889);  H(?lsf;t  V.  Helset.  8  111.  Api».  22; 
Baker  v.  CoiM-nbarger.  15  111.  (1H5.3), 
103,  105;  Baldwin  v.  Vrecland,  43  N. 
.1.  Ivj.  440;  Fluke  v.  Kliik.-.  1*5  N.  J. 
Iv[.  478;  Knicns  v.  St.  .John.  79  Hun 
<N.  Y.n  99;  Mellen  v.  .M.-lh-ii,  139  .\. 
Y.  210.  34  N.  R  li.  925;  McDr.iiald  v. 
OM.ini.  114  N.  Y.  5(HJ;  lU-atty  v. 
BviT.H.  IH   Pa.  St.  (H51i.  107;   Kvans' 

0.; 


Appeal,  63  Pa.  St.  (1809),  183.  187; 
Willing  V.  Peters.  7  Pa.  St.  287,  290; 
Harcum  v.  Hudnall,  14  Gratt.  (Va., 
1858),  309,  375;  Brown  v.  Miller  (W. 
Va.,  1898),  31  S.  E.  R,  956:  Ford  v. 
Ford,  5  Am.  St.  R.  147;  Brown  v. 
Brown,  83  Beav.  399;  Biggs  v.  Pea- 
cock,  L.  R.  22  Ch.  D.  284;  Deeth  v. 
Hale,  2  Moll.  317;  Smith  v.  Claxton, 
4  Madd.  484,  494;  Trower  v.  Knight- 
ley,  6  Mad.  134;  Holloway  v.  lijulclilTe, 
23  Beav.  103,  171;  In  re  Davidson,  L. 
R.  11  Ch.  D.  311,  348;  Sisson  v.  Giles, 
3  D.  J.  &  S.  014;  liriggs  v.  Chamher- 
lain.  11  Hare,  09;  Frank  v.  Bollans,  3 
Ch.  A))p.  717;  Buwyer  v.  Woodman, 
L.  R.  3  Eq.  313.  Since  all  the  beiie- 
liciaries  nmst  Join  in  electing  to  tako 
the  land  instead  of  the  money,  u  Hale 
of  land,  which  was  directed  to  be 
sold  as  soon  as  pracdcabic  and  tho 
proc('t,'dsili\  id<'il,  will  nut  been  joineil 
on  till!  ap|ilication  of  one  of  them 
nu^rely  because  of  t  lu>  dulhu'ss  of  the 
n-al  estabi  luarkt't.  .McDonald  v. 
G'llara,  30  N.  V.  S.  545,  9  Misc.  R.  OHfJ, 
39  N.  K.  k.  012.  Hi  X.  V.  500.  .Sco 
also  cases  cited  iliilr,  ";  719. 


994  LAW  OF  WILLS.  [§§  Y22,  Y23- 

be  invested  in  land  as  advantageously  as  the  whole  fund,  and, 
said  Lord  Cooper,  "  it  is  in  vain  to  lay  out  this  money  in  land 
for  one,  when  the  next  moment  he  may  turn  it  into  money; 
and  equity,  it  is  said,  like  nature,  will  do  nothing  in  vain."  ^ 

§  723.  IVIieii  an  election  must  be  made. —  The  person  who 
has  a  right  to  elect  must  exercise  his  right  lefore  the  actual 
sale  has  been  made.  He  cannot,  after  land  has  been  sold  and 
turned  into  money,  constructively  reconvert  it  into  land,  where 
his  action  will  prejudice  others.  Thus  a  judgment  creditor, 
who  is  also  a  legatee  of  a  portion  of  the  proceeds  of  land  di- 
rected to  be  sold,  cannot,  after  it  has  been  sold,  enforce  the  lien 
of  his  judgment  upon  the  share  of  another  legatee  as  land;^  and 
where  a  legatee,  who  has  a  right  to  elect,  has  elected  to  take 
land  instead  of  money,  the  executors  and  trustees  under  his 
will  cannot  elect  to  reconvert  the  land  into  money.^ 

§  723.  What  acts  constitute  an  election  to  take  property 
unconverted. —  The  evidence  of  an  election  on  the  part  of 
persons  entitled  to  property  to  take  it  in  an  uncontroverted 
condition  must  be  clear,  satisfactory  and  unequivocal.  Elec- 
tion depends  on  intention,  and  the  proof  must  leave  no  doubt 
of  the  intention.*  An  express  declaration  of  an  intention  to 
elect,  made  by  parol,  is  sufficient.'^  Devising  land  directed  to 
be  sold  in  language  which  can  only  be  applicable  to  the  dis- 
position of  real  property  by  will,^  giving  a  mortgage  on  it,'' 
paying  off  charges  on  it,^  selling  it  and  giving  a  deed  for  it  as 
land,^  leasing  it  to  a  new  tenant  from  year  to  year  ^"  for  a  num- 

iSeeley  v.  Jago,  1  P.  Wms.   389;  236;  Pulteney  v.  Lord  Darlington,  1 

Walker  v.  Denne,  2  Ves.  Jr.  170,  182;  Bro.  P.  C.  530;  Edwards  v.  Countess 

High  V.  Worley,  33  Ala.  196.  of  Warwick,  2  P.  Wms.  (1763),  173, 

^Osgood  V.  Franklin,  2  Johns.  Ch.  174,2  Eq.  Cas.  Ab.  42;  Dixon  v.  Gaj- 

(N.  Y.)  1;  Allison  v.  Wilson,  13  Serg.  fere,  17  Beav.  433. 

&  R.  (Pa.)  330;  Reed  v.  Mellor,  122  «Meek  v.  Devenish,  L.  R.  6  Ch.  D. 

Pa.  St.  63.3,  6r)2.  566,  573,  578;  Sharp  v.  St.  Sauveur, 

3  Howell  V.  Craft  (N.  J.  Eq.),  27  Atl.  L.  R.  7  Ch.  App.  343. 

E.  485.  7  Gest  v.  Flock,  2  N.  J.  Eq.  (1838), 

4  Bailey  v.  Alleglianey  Bank,  104    108.  115. 

Pa.  St.  (1883),  425;  Evans'  Appeal,  63  scaston  v.  Caston,  2  Rich.  (S.  C.) 

id.  (1869),  183,  187;  Jones  v.  Caldwell,  Eq.  1 ;  Fulton  v.  Moore,  25  Pa.  St.  408; 

97  id.  442;  Hall  v.  Hall,  2  McCord  Clay  v.  Hart,  7  Dana,  1. 

(S.  C,  1827),  Eq.  269,  306;  Stead  v.  sEmens  v.  St.  John,  79  Hun,  101; 

Newdigate,  2  Mer.  531;   Harcum  v.  Major's  Estate,  11  Pa.  Co.  Ct.  R.  359; 

Hudnall,  14  Gratt.  (Va.)  369, 375;  Will-  Prentice  v.  Jansen,  79  N.  Y.  478,  485. 

ing  V.  Peters.  7  Pa.  St.  287.  loin  re  Gordon,  L.  R.  6  Ch.  D.  531^ 

6  Wheldale  v.  Partridge,  8  Ves.  227,  537,  538. 


§  723.]  EQUITABLE    COXYEKSIOX.  995 

ber  of  years  by  a  lease  binding  upon  the  heirs  of  the  lessor,^ 
an  actual  partition  of  the  land,'-  filing-  a  bill  asking  for  its  sale,^ 
taking  possession  of  it  and  occupying  it,*  or  taking  the  title 
deeds  into  possession  ^  where  their  possession  is  necessary  to  a 
sale,  is  strong  and  usually  conclusive  evidence  of  an  election 
to  take  as  land.  If  occupation  is  accompanied  by  circum- 
stances indicating  an  intention  to  enjoy  the  property  perma- 
nently as  land,  as  erecting  buildings  or  otherwise  improving  it,® 
the  presumption  would  be  conclusive.  But  possession  of  and 
leasing  the  lands  are  always  to  be  considered  in  connection 
with  all  the  circumstances.  A  short  possession  by  tenants  in 
common  leasing  and  receiving  rents'^  is  inconclusive,  though 
Avhere  it  appeared  that  one  of  them  wished  to  retain  his  share 
as  land,  and  the  other  acquiesced,  the  court  held  that  both  had 
elected  to  take  the  land.^ 

The  act  of  a  person  who  is  absolutely  entitled  to  money 
which  has  been  directed  or  agreed  to  be  laid  out  in  land,  in  re- 
ceiving the  TTioney  from  tJie  trustees  in  its  original  sTiajye^  is  con- 
clusive of  an  intention  to  take  it  as  money,"  though  his  receipt 
and  expenditure  of  the  income  pending  an  investment  arc  not 
an  indication  of  such  an  intention.^"  So,  also,  it  has  been  held 
that  the  intention  to  elect  to  take  money  which  has  been  di- 
rected to  be  laid  out  in  land  is  conclusively  shown  by  hegueath- 
ing  the  money  as  personal  projperty^^  or  by  the  execution  of  a 
deed  by  and  among  the  persons  who  are  absolutely  entitled, 
descrihing  it  as  money  which  they  are  entitled  to  receive^-  or  by 
the  parties  calling  for  a  re-investment  of  the  money  in  new 

1  Mutlow  V.  Biggs,  L.  R.  1  Ch.  D.  Vos.  338;  Brown  v.  Brown,  33  Beav. 

883,  385,  393.  399. 

iSfu<Mf;r  V.  Stout.  10  N.  J.  Eq.  377.  8  Jn  re  Davidson,  L.  K'.  11  CIi.  1). 

3Iluh(;r   V.  Donogliue,  49  N.  J.  Eq,  311,  353. 

125,  23  Atl.  K.  1-J5.  «Pulteney   v.    Lord   Darlin-lon,  1 

♦In   re   fJordc^n.  I^   II,  0  Cli.   Div.  Bro.   C.  C.  235,  23(1,  23H;  Trallord  v. 

531,  5:W;  Crahtmj  v.  Branil.le,  3  Atk.  Boclini,  3  Atk.  '110. 

680;    Armstrong    v.    .McKdvcy,   101  "M  Jillios  v.  Eonglands.  1  J  )<>  (ii'x  & 

N.  Y.  179.  SniJilo,  372;   Pedder's   Settleniunt,  5 

'Grie.sbiich  v,  FnMnaiitif!,  17  Beav.  1)<^  (Jcx,  Mac.  «&  G.  890. 

814;  Daviea  V.  Ashford,  15Sim.  (1845),  "  I'lilttMioy   v.    Lord  Darlington,  1 

447.  Bro.  C.  C.  235,  230. 

*Mijtlow  v.  Biggs,  Hiijirn.  •'-'('ookKon  v.  Rcay,  5  Beav.  23;  Bid- 

7  M.-il.-n  V.  M.-ll.Ti.  139  .\.  Y.  210,  3J  duli.l.  v.  Biddulpli,"  12  V.-s.  1(11.  1(10. 
N.   E.  \L  925;  Kirkinan   v,  .MJl<-s,   13 


990  LAW   OF   WILLS.  [§  724 

securities  of  a  personal  characteiV  or  by  one  of  them  including 
it  in  an  inventory  of  his  personal  estate  as  sucli.^  And  when 
the  devisees  of  land  directed  to  be  sold  have  elected  to  take  it 
unconverted,  it  is  land  for  all  purposes;  and  if,  disregarding 
the  election,  the  land  is  sold,  equity  will  nevertheless  consider 
the  money  resulting  from  the  sale  as  land,  and  it  will  descend 
as  land  to  the  heir.'  Where  there  is  imminent  danger  of  the 
trustees  disregarding  the  election  of  beneficiaries  to  take  the 
property  unconverted,  equity  will  by  an  injunction  restrain 
the  sale  of  the  land  or  the  investment  of  the  money.*  And 
finally,  all  parties  being  sui  juris  and  agreeing  to  take  the  land 
unconverted,  it  is  most  safely  done  by  all  joining  in  an  appli- 
cation to  a  court  of  equity  for  a  decree  declaring  the  trust 
terminated,  instructing  the  trustees  to  make  proper  convey- 
ances, and  authorizmg  a  partition  according  to  the  terms  of  the 
will. 

§  724.  Election  Iby  remaiiidormeii  to  take  land  uncon- 
verted.— A  remainderman  may  elect  to  take  land  unconverted 
during  the  life  of  the  tenant  for  life,  where  the  power  of  sale  is 
to  be  exercised  at  the  death  of  the  latter.  The  cases  in  which 
such  an  election  has  been  made  are  where  the  remainder  was 
vested,''  and  the  general  rule  is  that  no  one  can  elect  to 
take  property  unconverted  unless  he  is  absolutely  entitled.'' 
But  there  seems  to  be  no  good  reason  why  a  person  who  is  only 
contingently  entitled  may  not  elect,  pending  the  life  estate, 
and  when  the  event  shall  happen  on  which  he  becomes  abso- 
lutely entitled,  this  election  shall  operate;  while  if  the  event 
never  happens,  his  election,  being  unnecessary,  shall  fall  with 
it.''     The  remainderman  may  elect  after  the  death  of  the  life 

iLingen  v.  Sowray,  1  P.  W.  172.  Harcourt  v.  Seymour,  15  Jur.  740; 

-  Harcourt  v.  Seymour,  2  Sim.  (N.  S.)  lu  re  Stewart,  16  Jur.  1063 ;  Daruford 

12, 47.     Compare  Skegg's  Settlement,  v.  Darnford,  10  L.  J.  (N.  S.,  1841),  Cli. 

2  De  Gex  &  Smale,  533,  535.  341,  342;  Meek  v.  Devenish,  L.  R.  6 

3  In  re  Gardner's  Trust,  L.  R.  1  Eq.  Ch.  Div.  566;  Howell  v.  Tompkins,  42 

57:  Mutlow  v.  Biggs,  L.  R.  1  Ch.  D.  N.  J.  Eq.  305, 11  AtL  R.  333;  Devon  v. 

383,  385.  McLeroy,  82  Ga.  687,  695;  Harper  v. 

•«  Meek  v.  Devenish,  L.  R.  6  Ch.  D.  Bank,  17  Misc.  R.  228. 

571.  «  Sisson  v.  Giles,  32  L.  J.  (N.  S.)  Ch. 

5  Short  v.  Wood,  1  P.  Wms.  (1718),  606,  3  De  Gex,  J.  &  S.  614. 

470,  471 :  Crabtree  v.  Bramble,  3  Atk.  "  3Ieek  v.  Devenish,  L,  R.  6  Ch.  Div. 

680:  Roberts  v.  Gordon,  37  L.  J.  (N.  S.)  559,  506,  571,  573. 
627;  Meredith  v.  Vick,  23  Beav.  059; 


§§   7'2o,  725a.]  EQUITABLE    COXYEESION.  99T 

tenant  and  before  actual  conversion;  ^  but  lie  cannot  wait  until 
after  the  sale,  and  by  an  election  to  take  the  proceeds  as  land 
prejudice  the  rights  of  others.  It  is  obvious  that  the  election 
of  a  remainderman  who  has  no  right  to  an  actual  possession,  or 
even  to  a  receipt  of  income,  during  the  prior  estate,  cannot  be 
evidenced  by  the  same  acts  as  in  the  case  of  an  estate  vested 
in  possession;  proof  of  a  direction  on  his  part  to  the  trustee 
not  to  sell,-  or  a  conveyance  by  him  of  his  future  interest,  in 
language  solely  applicable  to  land,  is  the  usual  mode  of  election. 

§  725.  When  the  tenant  in  tail  may  elect. —  The  English 
cases  are  not  wholly  harmonious  upon  the  power  of  a  tenant 
in  tail  of  money  directed  to  be  laid  out  in  land  to  elect  to  take 
it  unconverted.  It  depends  upon  the  character  of  his  interest. 
If  he,  being  himself  sui  juris,  could  by  a  fine  bar  the  entail 
and  acquire  an  absolute  interest,  he  ma}''  elect  to  take  the 
money  unconverted,  otherwise  not.  He  may  levy  the  fine  if 
he  is  tenant  in  tail  with  remainder  to  himself  in  fee  simple ; 
but  if  the  remainder  is  in  some  other  person,  that  person  must 
join  in  a  recovery,  and  the  tenant  in  tail  cannot  elect  without 
his  consent.^ 

§  7*25a.  No  constructive  conversion  when  money  is  at  home. 
The  English  cases  refuse  to  countenance  am'  constructive  con- 
version of  money  directed  or  agreed  to  be  laid  out  in  land 
where  the  money  to  which  the  direction  or  agreement  was 
applicable  is  at  home.  This  peculiar  expression  may  be  thus 
explained.  Where  the  obligation  to  invest  the  money  in  land 
and  the  right  to  call  for  its  investment  unite  in  the  same  per- 
son, the  money  is  said  to  be  at  home;  and,  as  the  necessity  for 
a  conversion  is  past,  none  will  be  construed  to  have  taken  place 
as  regards  the  heirs  or  next  of  kin  of  the  person  in  whose  hands 
the  money  is  at  home.  Thus,  where  a  man  agrees  to  invest 
money  in  land  to  be  settled  on  his  son  for  life,  remainder  to 
the  son's  children,  remainder  to  himself  and  his  heirs,  and  the 
Bon  dies  without  issue  bc.'fore  the  money  is  actiiallv  invested, 

'  Do  V;iuKlm  v.  McLeroy,   82   Ca.  Warw  iCk  v.  Ivlwar.ls.    1    \Wn.    \\  C 

687.  OJr,.  L'(i7,  :.'  J'.  W.   17:!;  Doriifonl  v.  I),.ni- 

2  Meredith  v.   Vick,  2:j   I',.-av.    .V.II.  fonl,  lU  1..  J.  (N.  S.)  ("Ii.  JMI, :{!..';  Ik-ii- 

*»«.■).  507.  Hon  V.  Hensoii,  1  P.  W.  i:((),  l.'Jl;  Short 

•HJollot  V.  Collet  (17:]7),  1  Atk.  II;  v.  Wood,  1  P.  W.  470,  471;  Aml.T  v. 

Traironi  v.  Boehm,  3  Atk.  440,  447;  Aiiiler,  :j  Yes,  Jr.  58.3. 


90S  LAW  or  WILLS.  [§  725a. 

so  that  the  money  remains  in  the  hands  of  the  person  who 
ao-reed  to  make  a  settlement,  no  constructive  conversion  takes 
phice,  and  the  money  is  money  as  between  the  representatives 
of  the  settlor.  If  he  dies,  the  money  agreed  to  be  invested 
will  pass  as  personal  property  to  his  executor.  The  general 
tendency  of  the  English  decisions  is  to  hold  that  the  heirs  of 
the  person  agreeing  to  make  the  settlement  have  no  equity  to 
claim  the  money  as  land  against  the  executor  or  next  of  kin 
of  the  ancestor,  though  if  he  had  actually  carried  out  the  agree- 
ment, and  had  invested  the  money  as  he  had  covenanted  to  do, 
they  would  have  inherited  it  from  him  as  land  actually  pur- 
chased under  the  agreement  to  make  a  settlement  upon  his 
son  and  the  issue  of  the  marriage. 

The  principles  upon  which  the  doctrine  of  the  money  being 
at  home  is  based  are  similar  to  those  elsewhere  explained,^  by 
virtue  of  which  a  person  in  whom  the  beneficial  interest  is  ab- 
solutely vested  may,  if  he  be  sui  juris,  elect  to  take  the  money 
or  land  unconverted.  The  person  in  whose  hands  the  money 
is  at  home  may  elect  to  invest  it  in  land,  and  if  he  does  so  his 
heirs  will  take  it  as  such ;  but  if  he  elect  to  retain  it  without 
an  actual  conversion  into  land,  no  constructive  conversion  will 
be  made  in  favor  of  his  heirs,  for  as  soon  as  the  money  is  in 
his  hand  it  is  free  from  the  terms  of  the  trust.  He  is  the  ab- 
solute owner  of  it,  though  it  is  money,  as  he  would  also  be  if  it 
had  been  invested,  in  land.  In  the  latter  case  he  might  alien- 
ate it  and  alter  it  into  money,  for  he  has  the  absolute  right  to 
it  in  either  form.^ 

1  §  719.  more  v.   Scudamore,   Pre.  Cli.   544: 

2  See  Chichester  v.  Bickerstaffe,  2  Bowes  v.  Earl  of  Shrewsbury,  5  Bro. 
Vern.  295;  Pulteney  v.  Darlington,  1  P.  C.  144;  Ptich  v.  "NVliitfield,  L.  R  2 
Bro.  C.  C.  223;  Edwards  v.  Countess  Eq.  583. 

of  Warwick,  2  P.  Wms.  176;  Scuda- 


CHAPTEK  XXXYIl. 


THE    DOCTRINE   OF    EQUITABLE    ELECTION  AS   RELATING  TO 

WILLS. 


728. 
729. 


§  726.  Definition  and  general  doc- 
trine of  election. 

The  origin  of  the  doctrine  of 
election. 

The  foundation  of  the  doc- 
trine of  election. 

The  effect  of  the  election  — 
Whether  based  on  com- 
pensation or  forfeiture. 

730.  Presumption  against  the  ne- 

cessity for  an  election  — 
The  testator  must  intend 
to  dispose  of  the  property 
of  another. 

731.  Finality  of  an  election  —  Its 

revocation  when  made  by 
mistake  or  procured  by 
fraud  or  bad  faith. 

733.  A  case  for  an  election  does 
not  arise  where  the  will  is 
invalid. 

733.  A  party  taking  title  indi- 
rectly is  not  put  to  his 
election  by  a  gift  under 
the  will. 

73.3a.  The  period  within  which  the 
election  must  be  made. 

734  Whether  parol  evidence  is 
receivable  to  show  an  in- 
tention to  require  an  elec- 
tion. 

733.  What  acts  constitute  an 
election  to  take  under  tlie 
will. 

736.  Not  miiterial  that  the  testa- 

tor BupiKJses  ho  owns  tho 
prop«'rty  dovi8«3d. 

737.  Election  by  infants  and  iii- 

c<jiii|H'tt'iit  jwrs^niH. 

738.  The   doctrine  of  election   in 

rulatioii  to  the  claims  of 
credilora. 


§  739.    Election  between  gifts  by  tho 
same  wilL 
7-iO.    Election  in  the  case  of  a  wili 
devising  land  in  different 
states. 

741.  Cases  of  election  under  pow- 

ers of  appointment. 

742.  Election  among  tenants  in 

common,  and  between  the 
life  tenant  and  remainder- 
men. 

743.  The  right  of  election  does  not 

inure  to  heir. 
744    The  doctrine  of  election  ia 
its  application  to  dower. 

745.  A  general  devise  of  land  to 

the  widow  or  a  devise  of 
land  in  trust  to  sell  does 
not  bar  dower. 

746.  Presumption  of  an  election 

by  the  widow  from  an 
equality  of  division. 

747.  The  effect  of  an  election  by 

the  widow  to  take  under 
the  will. 

748.  Compensation    to    widow 

when  devise  taken  in  lieu 
of  dower  fails. 

749.  Statutory  provisions  regulat- 

ing the  widow's  election. 

750.  Election    in   relation   to  de- 

vises of  coannunity  prop- 
erty. 

751.  Election  in  tho  case  of  a  de- 

vise of  tile  homestead. 

752.  Election  in  tlio  case  of  a  be- 

quest «)f  tho  prwoods  of  a 

]>()licy  of  insuranco. 
75;!.     The  luLsliand's  rigiit  to  elect 

as  n'sjH'cts  his  curtesy. 
751.     Ciirh'sy  in  land  ia  seimrate- 

a^e  trust. 


1000  LAW    OF   WILLS.  [§  720. 

§  7:;i6.  Definition  and  general  doctrine  of  election. —  Elec- 
tion has  been  very  neatly  defined  by  Mr.  Story  as  "  The  obli- 
gation imposed  upon  a  party  to  choose  between  two  inconsist- 
ent or  alternative  rights  or  claims  in  cases  where  there  is  a 
clear  intention  of  the  person  from  whom  he  derives  one  that 
he  should  not  enjoy  both."  ^  The  doctrine  of  election  is  of 
comparatively  recent  origin  in  equity,  and  is  applicable  both 
to  wills  and  to  deeds.  It  is  proposed  in  this  chapter  to  discuss 
the  subject  only  so  far  as  it  is  applicable  to  wills.  TVhether 
the  true  foundation  of  the  doctrine  be  the  intention  of  the  tes- 
tator, actual  or  presumed,  that  the  party  shall  not  take  incon- 
sistent benefits,  or  whether  its  foundation  be  the  ecjuitable 
principle  that  "  he  who  seeks  equity  must  do  equity,"  -  is  not 
very  important;  for  the  doctrine  itself  is  so  reasonable,  and  it 
commends  itself  so  forcibly  to  one's  sense  of  justice,  that  it  is 
sure  to  find  a  place  in  any  well-regulated  system  of  jurispru- 
dence. 

The  doctrine  of  election  as  applied  to  the  law  of  wills  simply 
means  that  he  who  takes  under  a  will  must  conform  to  all  its 
provisions.  He  cannot  accept  a  benefit  given  by  the  testa- 
mentary instrument  and  evade  its  burdens.  He  must  either 
conform  to  the  will  or  wholly  reject  and  repudiate  it.  JSTo  per- 
son is  under  any  legal  obligation  to  accept  the  bounty  of  the 
testator;  but,  if  he  accepts  what  the  testator  confers  upon  him 
bv  his  will,  he  must  adhere  to  that  will  throughout  all  its  dis- 
positions. If  he  shall  take  a  beneficial  interest  in  the  estate 
imder  the  will,  equity  will  hold  him  to  his  choice,  and  it  will 
be  conclusively  presumed  that  he  intends  thereby  to  ratify  and 
conform  to  every  part  of  it.  This  presumption  of  a  ratifica- 
tion of  the  will  on  his  part  is  applicable  though  the  testator 
has  attempted  to  give  away  property  belonging  to  him.  He 
cannot  accept  the  instrument  so  far  as  it  bencxlts  him  and  re- 
ject it  so  far  as  it  gives  away  his  property,  for  it  is  against 
equity  and  good  conscience  that  a  person  should  hold  property 
giv^en  or  devised  by  virtue  of  the  will  Avhich  he  could  not  do 
Avithout  it,  and  at  the  same  time  defeat  some  of  its  provisions 
by  asserting  his  paramount  claim  to  that  which,  by  the  will, 
was  intended  to  benefit   others.     He  must  therefore   either 

1  Story,  Eq.  Jur.,  §  1075.  2  See  post,  g  729. 


§   727.]  DOCTRINE    OF    EQUITABLE    ELECTION.  1001 

wholly  comply  with  the  will  or  wholly  repudiate  it  and  adhere 
to  his  paramount  claim.^ 

§  727.  The  origin  of  tlie  doctrine  of  election. —  It  is  un- 
doubtedly true,  as  pointed  out  by  the  authorities,  that  the  doc- 
trine of  election  had  its  origin  in  the  Eoman  law.  In  that 
system  of  jurisprudence  a  person  by  his  testament  appointed  an 
heir,  who  was  simply  the  successor  of  the  testator.  The  person 
thus  appointed  had  a  period  of  time  granted  him  to  enable  him 
to  determine  whether  he  would  accept  the  nomination  as  1i<^res. 
If  he  accepted,  in  other  words,  if  he  elected  to  take  under  the 
testamcntum^  he  was  bound  to  fulfill  all  its  provisions,  to  pay 
the  debts  of  the  testator  and  the  legacies  ffiven  in  the  will.  So, 
too,  according  to  the  rules  of  the  Eoman  law,  the  testator 
might  not  only  give  his  own  property'  as  a  legac\",  but  he  might 
also  give  the  property  of  the  person  whom  he  appointed  as 
heir,  or  he  might  give  the  property  of  a  third  person.  Thus 
he  might  b}^  his  testament  give  a  house  to  A.  which  belonged 
to  B.,  and  the  heir,  electing  to  take  the  succession,  was  bound 
by  his  election  either  to  purchase  the  house  from  B.  and  tc^ 
convey  it  to  A.,  or  to  give  A.  the  full  value  of  the  house  in 
money.  But  this  rule  of  the  lioman  law  was  only  applicable 
where  the  testator,  in  giving  the  property  of  another  as  a  leg- 
acy, haew  that  he  was  bequeathing  property  which  did  not 
belong  to  him;  for,  if  he  gave  away  the  property  of  another 
person  under  the  belief  that  it  was  his  own,  the  gift  was  void. 

J  Morrison    v.    Bowman.    29     Cal.  lin.  1  Edw.  (N.  Y.)  200;  Stevenson  v. 

(1%'i),  347;  Kinsey  a'.  Woodward,  3  lirown.  4  N.  J.  Eq.  5U3,  ."304;  Kinnaird 

Harr.  (Del)  4.'54,40(J;  3IadLson  v.  Lar-  v.  Williams,  8  Leigli  (Va.,  1830),  400, 

mon  (IIL,  1893),  4«  X.  E.  R  o-'iG:  Less-  400.  "  A  valid  gift,  in  terms  absolute, 

ley  V.  Lessley,  44  111.  (1807),  .527,529;  is  qualified   by  reference  to  a  dis- 

"Wilbanks  v.  Wilbanks,  18  IIL  17,  19;  tiuct  clause,  which,  tiiough  inopeni- 

Haydon  v.  Ewing,  1  B.  Mon.  (40  Ky.,  tive  as  a  conveyance,  airunls  authen- 

1H41),  lit,  114;  George  v.  Bussing,  l.j  tic  evidence  of  intention.  Tlie  inten- 

iiL  .'i.'>8,  50;J.  .'iO.i;  Goro   v.  St«vens,   1  tion  being  assunu'<l,  the  c«.>nscieuce 

I>ansi   (31    Ky.).   201,   204;   Smart   v.  of  the  doni<e  is  airectcd  by  the  con- 

P^jislcy,  .5  J.  J.  Marsli.  (Ky.)  21."),  210;  dition    faltliough   it   is   destitute   of 

Ward    v.  Ward,   l."i   Pick.  (32   Mass.,  legal  validity),  not  e-xpn-ss,  but  im- 

\X-V\\  .'ill,  .'>20;   Smith   v.  Smith,   H  plii,*d,  which  is  anne.xed  to  tliu  bene- 

Gray  iMuss.),  .")32,  .')33;  Hyde  v.  Bald-  fit  jnoposcil  to  him.     For  the  doniH) 

win,   17   I'i'k.  (Mass.,  18:J."i),  30.J,  30N;  to  acii-pt  the    beiicHt  while  lie  do- 

IIupgtMxl     V.    IIought«*n,    22     Pick,  dines  the  burden  is  to  defraud  the 

(.Mawi.)  4H0;  .Smith  v.  (Juilil,  34   Me.  design  of  the  donor."     2  Story,  Ya\. 

(18->2),  443,  417;  Ix.'onard  v.  Cromme-  Jur.,  g  1077. 


1002 


LAW    OK    WILLS. 


[§  T28. 


This,  as  will  bo  soon,  is  the  opposite  of  the  rule  of  English 
equity,  where  the  doctrine  of  election  is  applicable  irrespective 
of  the  fact  that  the  testator  erroneously  supposed  that  ho 
owned  the  article  which  he  has  dis])osed  of.^ 

§7:28.  The  fouiKlatiou  of  tlie  doctrine  of  election. —  The 
cases  in  which  the  doctrine  of  election  was  created,  and  in 
Avhich  the  rules  that  govern  it  were  formulated,  proceeded  u})()n 
the  theory  of  a  presumptive  intention  upon  the  part  of  the  tes- 
tator, or  the  donor,  that  the  person  was  not  to  take  a  double 
benefit.  The  courts  reasoned  that  if  a  man,  by  his  will,  gave 
property  of  his  own  to  A.,  and  by  the  same  will  gave  property 


1  Jiistinian's  Institutes,  lib.  II,  tit. 
XX,  sec.  4  The  doctrines  of  equity, 
unlike  the  rules  of  tlie  common  law, 
may  readily  be  traced  to  their  or- 
igin. We  are  able  to  say  with  ?V)so- 
lute  certainty  when  and  by  what 
chancellor  almost  every  principle  of 
equity  jurisprudence  had  its  origin. 
The  rule  of  the  common  law  that 
land  should  descend  to  the  eldest  son 
as  heir  must  have  had  its  oi-igin  at 
some  particular  point  of  time.  There 
must  have  been  some  adjudication  in 
which  that  fundamental  rule  of  the 
common  law  was  formulated  for 
the  first  time,  though  it  is  absolutely 
impossible  at  the  ])resent  time  to  as- 
certain when  or  how  tlie  rule  arose. 
But  with  equity  the  case  is  quite 
otherwise.  We  can,  for  example, 
point  to  the  case  of  Noys  v.  Mor- 
daunt,  reported  2  Vernon,  581;  Eq. 
Ca.  Ab.  273,  pi.  3;  Prec.  Ch.  265,  and 
decided  by  Lord  Chancellor  Thurlow, 
in  the  year  170G,  as  the  occasion  for 
tlie  creation  of  the  equitable  doctrine 
of  election.  In  that  case  a  man  hav- 
ing two  daughters  made  a  will  in 
1(586  in  which  lie  devised  to  one  of 
them  (B.)  lands  which  he  owned  in 
fee  simple,  and  to  the  other  (C.) 
lands  which  had  been  settled  upon 
liim  in  fee  tail,  as  follows:  "To  the 
testator  for  life,  then  to  his  wife  for 
life  as  jointure,  then  to  the  sons  of 
the  testator  on  their  majority  in  order 
of  birth,  and  in  default  of  male  issue, 


then  to  the  heirs  of  the  body."  The 
daugliter  (B.)  to  whom  the  fee-simple 
lands  had  been  devised  claimed  a 
share  in  the  settled  lands  as  one  of 
the  heirs  of  the  body,  there  being  no 
sons  of  the  marriage.  She  claimed 
to  take  a  moiety  of  the  lands  in  fee 
tail,  all  of  which  had  been  devised  to 
C.  The  court,  in  rejecting  her  claim, 
remarked  that  in  all  cases  where  a 
man,  disposing  of  lands  among  liis 
children,  gives  to  one  fee-simple 
lands,  and  to  another  lands  entailed 
upon  the  one  to  whom  the  fee-simple 
lands  are  given,  or  upon  such  one 
jointly  with  the  other,  it  is  upon  an 
implied  condition  that  each  party 
acquit  and  release  the  other,  particu- 
larly where  the  intention  of  the  tes- 
tator is  evidently  to  dispose  of  his 
whole  estate.  This  case  was  soon 
followed  by  Hearne  v.  Hearne,  3 
Vern.  55,  and  Cowper  v.  Cotton,  3  P. 
Wms.  123,  decided  in  1731,  where,  in 
the  case  of  a  freeman  of  London,  de- 
vising his  estate  to  raise  a  fund  for 
his  daughters,  it  was  held  that  they 
must  choose  between  what  they 
would  take  under  the  will  and  what 
they  take  by  the  custom  of  London. 
A  few  years  later  in  1735  in  Streat- 
field  v.  Streatiield,  Cas.  Temp.  Talbot, 
176,  the  whole  matter  was  re-exam- 
ined by  Lord  Chancellor  Talbot  and 
the  principle  of  election  afllrmed  and 
restated  with  great  particularity. 


§  728.]        DOCTRINE  OF  EQUITABLE  ELECTION".  1003 

which  belonged  to  A.  to  B.,  he  "vvas  presumed  to  intend  that 
A.  should  not  claim  the  property  given  him  under  the  will 
and  also  assert  his  right  to  his  own  property  given  to  B.,  and 
the  court  of  equity  implied  a  tacit  condition  to  that  effect, 
which  was  supposed  to  be  annexed  to  the  gift  to  A.  The  court 
implied  an  intention,  or  created  a  presumption  of  an  intention, 
that  the  person  should  elect,  where  the  actual  intention  was 
not  ascertainable  from  the  language  of  the  will.  For,  if  tho 
testator  knew  that  the  property  which  he  attempted  in  his  will 
to  give  away  helonged  to  some  person  other  than  himself,  it  is 
extremely  reasonable  to  presume  an  intention  on  his  part 
that  the  devisee  should  elect.  For,  if  he  gives  away  property 
which  he  knows  belongs  to  some  other  person,  and  at  the  same 
time  gives  that  person  something  under  his  will,  he  must  have 
relied  upon  the  benefits  that  he  conferred  upon  the  latter  to 
induce  him  to  relinquish  his  property  given  to  some  one  else. 
Under  such  circumstances  an  intention  to  require  an  election 
may  reasonably  be  presumed. 

But  where  a  testator  supposes  the  property  of  the  third  per- 
son which  he  gives  away  is  in  fact  his  own,  any  presumption 
of  an  intention  to  put  such  person  to  an  election  is  merely  a  fic- 
tion of  law,  as  the  testator  undoxihtedhj  helieves  he  is  disposinr/ 
of  his  own  propjerty.  Although  the  cases  almost  unanimously 
base  the  doctrine  of  election  upon  an  intention  on  the  part  of 
the  testator,  it  is  clear  that  tho  rule  of  ek^ction  in  tlie  Latter 
case  stands  upon  a  different  basis.  The  doctrine  of  election  is 
not  arbitrary  and  unreasonal:)le,  nor  is  it  based  on  technical 
grounds.  It  is  designed  to  carry  into  effect  the  intention  of 
the  testator,  which  must  in  every  case  be  ascertained  from  tho 
will.  Evidence  outside  of  the  will  is  not  admissil)le  to  show 
;in  intcntir)!!  on  tho  part  of  the  testator  that  the  party  shouhl 
elect.  And  where  the  will  shows  no  intention  either  way,  it 
<loes  not  sef'in  ncccss.-ii-v  to  resort  to  any  liction  of  the  exist- 
ence of  a  presuiin'i!  inli'iition.  for  (•(piit  \'  itiiMspnidciice  riii'iiislirs 
a  princij)le  which  solv<.-s  the  (lilliculty,  and,  hy  jjjacin;:,-  tht;  doc- 
trine of  (.'lection  on  its  triu;  foim<hition,  relieves  it  of  its  seem- 
ingly tochnical  aii'l  :ipl)itrary  charact(!r.  The  piiiuiple  nre(|iiity, 
that  lie  V)}io  HtrVn  nfulfi/  uniHt  do  I'^jnlti/^  is  the  true  basis  of  tho 
doctrine  of  el«!ction,  Jf  a  party  comes  into  a  court  of  e()uity 
claiming  an  interest  in  property  unch-r  an  instrument  by  which 


1004  LAW    OF    WILLS.  [§  T29. 

other  jiropcrty  belonging  to  him  is  given  to  another,  he  must 
abide  by  the  whole  instrument.  He  must  do  equity,  to  the  ex- 
tent of  acquiescing  in  the  provisions  of  the  instrument  so  far 
as  they  are  adverse  to  his  interests,  before  asserting  his  rights 
under  the  instrument,  to  the  extent  that  it  benefits  him.  lu 
other  words,  while  seeking  to  defend  and  advance  his  own  in- 
terests under  the  instrument,  he  must  respect  the  rights  wliich 
it  confers  upon  other.^  But  generally  the  mere  receipt  of  a 
legacy  will  not  preclude  a  legatee  from  claiming  land  adverse 
to  the  will,  in  the  absence  of  a  counter  equity,  though  the 
claimant,  before  enforcing  his  right,  must  repay  the  legacy, 
"with  interest,  or  bring  it  into  court.  This  is  the  rule  though 
he  is  an  infant,  and  the  election  must  be  made  for  him.' 

And  a  court  of  equity  will  adapt  the  remedy  to  the  particu- 
lar circumstances  of  each  case.  For  if  a  person  who  elects  to 
take  against  a  will  has  received  a  legacy  under  it  which  he  is 
unable  or  unwilling  to  repay,  a  court  of  equity  will  decree  that 
the  legacy  shall  be  a  lien  upon  the  property  which  he  takes 
against  the  will  in  favor  of  the  executor  if  it  be  personal  prop- 
erty, and  in  favor  of  the  disappointed  devisee  if  it  be  real  prop- 
erty.^ 

§  729.  The  effect  of  the  election  and  wliether  ha<Jod  on 
compensation  or  forfeiture. —  Upon  common-law  principles 

i"You    cannot    act,  you    cannot  ^jjamblett  v.  Hamblett,  6  N.  H. 

come  foi'tli  to  a  court  of  justice  claim-  333,  337;  Young  v.  Young,  51   X.  J. 

ing    anj-  repugnant  rights.     When  Eq.  491,  27  Atl.  R.  627;  Bell  v.  Arni- 

you  claim  under  a  deed,  you  must  strong,  1  Add.  305,  37-1;  Braham  v. 

claim  under  the  whole  deed  together.  Burchell,  3  Add.  243,  257. 

You  cannot  take  one  clause  and  de-  ^  Codrington  v.   Lindsay,  L.   R.  8 

sire  the    court  to    shut  their  eyes  Ch.  App.  578.    The  doctrine  of  elec- 

against  the  rest.    Suppose  in  the  will  tion  has  been  applied  to  the  case  of 

a  legacy  is  given  to  you  by  one  clause ;  a  devisee  who,  being  also  an  executor. 

by  another  an  estate  of  which  you  got  possession  of  the  personal  proj)- 

are  in  possession  is  given  to  another;  erty,  and  misappropriated  it  to  the 

while  you  hold  that  you  shall  not  prejudice  of  legatees;   having  thus 

claim  the  legacy.     You  cannot  dis-  disappointed  the  intention  of  the  tes- 

j)ute  the  ownership.     So  in  the  case  tator  wlio  had  divided  the  personal 

of  personal  legacies.     If  the  specific  estate  equally  among  all  his  cliil- 

thing  failing,  and  one  of  the  legatees  dren,  it  was  decreed  that  he  sliould 

is  by  the  will  given  another,  the  leg-  forfeit  his  right  to  a  share  in  the 

atee    cannot  hold  both.      He  must  land  to   make  good  what  he    had 

make  himself  competent  to  take  the  taken  more  than  his  share  in  the  per- 

legacy   by  giving    up    the    specific  sonal  property.  Armstrong  v. Walker, 

thing."    Wilson  v.  Lord  Townsliend,  25  Atl.  R.  53,  150  Pa.  St.  589. 
2  Ves.  Jr.  697,  by  Lord  Rosslyn. 


§   729.]  DOCTKI^-E    OF    EQUITABLE    ELECTION".  1005 

the  party  who  has  elected  to  take  against  a  will,  that  is  to  say, 
who  has  elected  to  take  property  which  belongs  to  him,  but 
which  the  testator  has  devised  to  another,  and  to  relinquish 
ju'operty  which  belonged  absolutely  to  the  testator,  but  which 
had  been  b}'  the  testator  given  to  him,  would  by  his  action 
not  only  deprive  that  other  of  the  property  which  the  testator 
had  given  him,  but  the  property  which  he  relinquished  would 
go  as  property  of  which  the  testator  was  intestate,  or  would 
pass  as  a  part  of  the  residue.  In  other  words,  he  forfeited  his 
title  to  the  property  given  him  by  the  will,  not  for  the  henefit 
of  the  other  legatee  whom  he  had  disai^pointed  by  his  election, 
but  for  the  henefit  of  the  heirs  or  next  of  kin  of  the  testator. 
And  the  result  of  this  would  be,  if  equity  had  not,  in  formulat- 
ing the  doctrine  of  election,  provided  for  such  a  contingency, 
that  the  testator,  who  it  may  be  presumed  intended  to  die  tes- 
tate, would  have  his  intention  nullified  so  that  his  heir  whom 
he  had  disinherited  by  express  Avords  would  take  the  estate. 

In  equity  the  rule  is  quite  dilferent.  The  common-law  prin- 
ciple of  forfeiture  is  not  recognized.  The  person  who  makes 
an  election  against  the  will  must  surrender  that  which  is  given 
to  him  by  the  will  in  order  to  make  good  that  which  he  takes 
from  another  beneficiary.  The  equitable  rule  of  compensation 
is  recognized  that  the  intention  of  the  testator,  so  far  as  is  pos- 
sible, may  be  carried  out.  The  person  electing  is  not  divested 
of  the  legal  title  to  the  property  devised  him,  but  he  holds  it 
as  a  trustee  for  tho.se  whom  his  election  disapi)oints.  And 
equity  will  sequester  and  adiniiiistcr  tiie  property  he  renounces 
for  the  purpo.se  of  comix-nsating  those  who  have  been  (le[)rivetl 
of  what  the  will  was  made  for  the  purp<jse  of  giving  them.' 

1  Jennin^'s  V.  Jenning.s,  21  Ohio  St.  deviseos  were  to  take  oqually.     A. 

81;  Peiinsylvaniji   Ca   v.   Stoken,  01  was   required   to  elect   whether   lie 

P.i.  St.  i:»<);  SaniIcK;'n    Apiwai,  Cm  Pa.  would  take  under  the  will  or  elaiiii 

St-  :{1 4;  Small  v.  Marhury.  77  .M<1.  11,  what  In-  had  be<-n  ;;iveii  hy  thedee.l. 

2."}    Atl.    It.    920;    L5raiideiil>ur(^h    v.  llavin;^   eleetod  to  retain   the  land 

Tiiorndike,  28  N,  E.  It.  57').  lUiJ  Mas.s.  under  the  deed,  //«  could  uot  irs/r  /'or 

lo2;    In    re   I3alli'Utine'H    K>tale,    2.'i  a  jxtrtilion  uf  the  rcin(tiiiihi;inill\m 

Pitthb.  Lei?.  J.  IIO;  Lilly   v.   .Menke,  sliare  which  ho  would  have  njceived 

!.'♦»  -Mo.  lUO,  28  S.  NV.  It.  «i:j;   Collins  therein  hu<l  he  taken  un<ler  the  will 

V.  TollinH,  120   Ind.   ."».")1>.  25  N.  K.  It.  would  Ih.»  He(|uestered  to  eornpensiito 

701.     The   t«Mtsitor   devis«-d   land   to  ]1.  and  ( '.    llrown  v.  Brown,  12  .Minn. 

.\.,  P.  and  < '.,  a  [K^rtion  of  which  he  27'),  1 1  N.  \V.  K.  250.     See  ulHo.as  ."sus- 

liad  previously  conveyed  to  A.     The  tainin;?  the  rules  htated  in  the  text, 


1000  LAAV    OF    WILLS.  [§  729. 

The  fact  that  a  devisee  refuses  to  take  under  a  will  and  elects 
to  take  against  it  has  no  eifect  upon  the  will  except  so  far  as 
tlie  share  of  some  other  legatee  may  be  diminished  by  his  elec- 
tion. The  person  who  loses  by  the  election  has  the  right,  in 
equity,  to  have  the  property  which  has  been  relinquished  se- 
questered for  him  to  make  good  his  loss.  And  this  ancient  and 
Avell  recognized  and  reasonable  doctrine  of  compensation  is  so 
consistent  with  the  principles  of  equity  and  fairness  that  it  has 
been  invariably  applied  to  the  case  of  a  widow  who  elects  to 
take  her  dower  against  the  will  and  under  the  law,  and  to 
forego  the  benefit  of  a  provision  made  for  her  in  tlie  will  in  lieu 
of  dower.  Thus  a  devisee  of  land,  upon  which  the  dower  of 
the  wndow  becomes  a  charge  by  reason  of  her  election  to  take 
against  the  will,  is  entitled  to  compensation  out  of  the  property, 
whether  real  or  personal,  w'hich  the  will  gave  but  which  has 
been  rejected  by  her.^  So  where  the  testator  disposed  of  land 
Avhich  was  owned  by  himself  and  some  of  his  children  as  part- 
ners, giving  it  to  his  widow  and  some  of  his  children,  and  the 
children  who  were  partners  declined  to  take  under  the  will  and 
established  their  rights  by  suit,  it  was  held  that  the  liquidated 
interest  of  the  testator  in  the  partnership  was  not  distrilnitaljle 
as  intestate  property,  but  that  it  went  to  the  devisees  who  had 
been  compelled  to  relinquish  their  devises  by  the  election  of 
the  partners.- 

Granting  that  the  doctrine  of  election  is  based  upon  the  princi- 
ple of  compensation  and  not  upon  that  of  forfeiture,  and  assum- 
ing also  that  the  property  which  is  relinquished  by  the  person 
Avho  makes  the  election  against  the  will  is  to  be  held  in  trust 

Cauff man  v.  Cauffman,  17  S.  &  R.  legacies.   Howells  v.  Jenkins,  1  De  G., 

(Pa.)  16.  2-}-,  Boyles  v.  Murphy,  55  111.  Jo.  &  Sm.  617. 

(1870),  236;  In  re  Rawlings'  Estate,  ^Sarles  v,  Sarles,  19  Abb.  N.  C.  (N. 

bl    Iowa,   701   (1891),   47    N.   W.    R.  Y.)322;  In  re  Frist's  Estate,  6  Dem. 

992;  Devecmon  v.  Shaw,  70  Md.  219,  431,  1  N.  Y.  S.  640;  Tehan  v.  Tehan, 

16  Atl.  R  645;  Weeks  v.  Patten,  18  83  Hun,  368,  31  N.  Y.  S.  961;  In  re 

Ma  (1841),  42;  Morris  v.  Morris,  119  Lyon's  Estate,  3  Pa.  Dist.  Co.  R.  739; 

Ind.  341,  21  N.  E.  R  918;  In  re  Ba-  Marriott  v.  Badger,  5  Md.  300  (l':<54); 

tione's  Estate,  136  Pa.  St.  307,  27  W.  Key  v.  Griffin,  1  Rich.  Eq.  (S.  C.)  67; 

N.   C.   1,  20  AtL    R.  572.     Property  Sawyer  v.  Freeman,  161  Mass.  54-3. 

which  is  sequestered  by  a  court  as  See  also  note  1,  p.  1005. 

compensation  to  disappointed  lega-  2  Colvert  v.  AVood,  25  S.  W.  R  963, 

tees  will  be  divided  among  them  in  93  Tenn.  454. 
proportion  to  the   amount  of  their 


§   720.]  DOCTKINE    OF    EQUITABLE    ELECTION.  lU07 

for  the  compensation  of  the  person  who  is  deprived  by  it,  it 
remains  to  be  considered  whether  the  person  electing  to  take 
against  the  will  is  bound  to  surrender  the  whole  henefit  which 
was  given  to  him  by  the  will,  or  does  he  lose  only  as  mAich  of 
it  as  is  needed  to  compensate  those  ichom  he  has  disappointed.  The 
question  has  been  seldom  under  consideration  in  the  cases  for 
the  reason  that,  if  the  property  which  is  given  under  the  will 
to  the  person  who  has  a  right  to  make  an  election  is  of  more 
value  than  his  own  which  the  will  gives  to  another,  he  simply 
relinquishes  his  own  and  takes  under  the  Avill,  and  neither  legatee 
is  disappointed.^  as  each  receives  what  the  loill  gave  him.  If  his 
own  property  given  away  by  the  will  is  more  valuable  than 
Avhat  he  receives  under  the  will,  he  most  likely  will  elect  to 
retain  his  own  property  to  the  prejudice  of  the  legatee  to  whom 
it  was  given  by  the  Avill.  In  the  latter  case  no  question  of  com- 
pensation can  arise,  for  the  disappointed  legatee  gets  only  ichat 
the  party  making  an  election  relinquishes  under  the  will.  lie 
gets  all  of  it,  and  cannot  claim  more. 

In  some  few  cases  the  question  might  arise  whether  the  per- 
son who  elects  to  take  against  the  will  is  bound  to  surrender 
all  that  the  will  gives  him,  or  must  he  surrender  only  so  much 
of  it  as  will  compensate  the  legatee  whom  his  election  disappoints. 
In  all  such  cases,  in  spite  of  some  lack  of  harmony  in  the  de- 
cisions, the  rule  seems  to  be  that  the  person  electing  to  take 
against  the  will  shall  be  required  to  give  np  only  so  much  of  his 
legacy  as  v:lll  make  conqjensation  to  the  person  who  is  disap- 
pointed by  his  election.  After  such  person  is  iiKlciiiuilied,  the 
surplus  of  the  legacy,  if  any,  belongs  to  the  party  making  tho 
election,  and  does  not  go  to  the  heir-at-law  or  the  next  of  kin 
of  the  testator  as  property  undisposed  of.  Thus,  if  the  h'gacy 
given  to  the  party  who  elects  was  valued  at  s1o,(M)<i,  and  his 
])roperty  given  in  the  will  to  a  third  ])ers<)n  w;is  W(trth  ^100, 
though  ho  should  assert  his  right  against  the  will  to  tiie  latter, 
he  would  still  have  a  right  to  claim  the  excess  of  his  h'gacy 
over  the  value  of  his  property  given  to  ;moflier.' 

•Dcljinpy's  KHtsit.',  49  Ciil.  7!);  Car-  in.iii.  17  S.  ^  U.  (I'a.).  K!.  L'");  Slump 

IM!r  V.  Crowl.  1  ID  111.  477,  :iO  N.  K.  H.  v.    Iiiil.y.   2  Itiiwlo  (Ph..   1828).   108, 

1040;  WillKiiikH  v.  Wilbanks,  18  III.  174:    I..-wis   v.   L«'\vis,  V.\  Pa,  St.  70. 

17,  21;  W«-<.'kH  V,  Pjitton.   18  .M«.  42.  82;   Van    Dyk.i'H  Ap|M-al.  (JO  Pii.   St. 

4r,;    WliiUs   V.   nrrx-aw.    14    Ohio  St.  481,  4»<l;  M<Iiil..sirH  Kstal.',   158  Pa. 

(IbCy;,  yjU,  yi«;  Cuuiruiuu  V.  Cuuir-  St.  528,  .j:J5;  (Jallaglicr's  Appuul,  87 


1008 


LAW    OF    -WILLS. 


[§  T3  J. 


§  7.30.  rrosuniptioii  against  necessity  for  election  —  Tes- 
tator must  intend  to  dispose  of  the  property  of  another,— 

The  ordinaiy  presumption  in  all  cases  is  that  a  man  in  makini^ 
liis  will  intends  to  disjmse  of  Ids  own  jyroperty  alone.     An  inton- 


Pa.  St.  200;  Ferguson's  Appeal,  138 
Pa.  St.  208;  i\rarriott  v.  Badger,  5  Md. 
30G;  Koe  v.  Roe,  21  N.  J.  Eq.  (1870^, 
Oo^:  Kinnaird  v.  Williams.  8  Leigh 
(Va.,  1836),  400,  408;  Streatfield  v. 
Streatfield,  Cas.  T.  Talb.  176;  Lord 
Eanclitfe  v.  Parkins,  6  Dow,  149,  179; 
Lewis  V.  King,  2  Brow.  Ch.  600;  Bar 
V.  Bar,  "3  B.  P.  C.  Toml.  167,  178; 
Freke  v.  Barrington,  3  Bro.  Ch.  274, 
284;  Dashwood  v.  Peyton,  18  Ves.  27, 
41.  49;  Whistler  v.  Webster,  2  Ves. 
367,  372;  Blake  v.  Bunburj-,  1  Ves. 
514,  .523;  Greenwood  v.  Penny,  13 
Beav.  403,  406;  Ward  v,  Baugh,  4 
Ves.  027;  Ardesoife  v.  Bennett,  2 
Dick.  463;  Lady  Cavan  v.  Pulteney, 
3  Ves.  544,  560;  Padbury  v.  Clarke,  3 
Mac.  &  G.  298;  Ho  wells  v.  Jenkins,  1 
De  G.,  Jo.  &  Sm.  617,  2  J.  &  H.  706; 
Cooper  V.  Cooper,  L.  R.  6  Ch.  App.  15, 
7  H,  L.  53.  An  action  for  compen- 
sation will  lie  against  the  personal 
representatives  of  the  party  who 
has  elected  to  take  against  the  will, 
Rogers  v.  Jones,  3  Ch.  Div.  688,  690; 
Fytche  v.  Fytche,  19  L.  T.  (N.  S.) 
343, 344.  "  Consequently,  as  between 
his  (the  son's)  estate  and  her  disap- 
pointed legatees,  her  disappointed 
legatees  are  entitled  to  put  liis  estate 
to  an  election.  That  is,  any  disap- 
pointed legatee  is  entitled  to  say, 
you  shall  not  have  the  benefit  given 
to  your  estate  by  the  will  unless  I 
have  made  up  to  me  an  equivalent 
benefit  to  that  which  the  testator  in- 
tended me  to  take.  Sometimes  this 
is  called  the  doctrine  of  compensa- 
tion, which  is  the  meaning  of  the 
doctrine  of  election  as  it  now  stands. 
The  disappointed  legatee  may  say  to 
the  devisee,  you  are  not  allowed  by 
a  court  of  equity  to  take  away  out  of 
the  testatrix's  estate  that  which  you 


would  otlierwise  be  entitled  to  until 
you  have  made  good  to  me  the  bene- 
fit she  intended  for  me.  Tliat  means 
tliat  no  one  can  take  the  proi)erty 
wliich  is  claimed  under  the  will 
without  making  good  the  amount; 
or,  in  other  words,  as  between  tlie 
devisees  and  legatees  claiming  under 
the  will,  the  disappointed  legatees 
are  entitled  to  sequester  or  to  keep 
back  from  the  other  devisees  or  leg- 
atees the  property  so  devised  and 
bequeathed  until  compensation  is 
made.  Thence  arises  the  doctrine 
of  an  equitable  charge  or  riglit  to 
realize  out  of  that  pi'operty  the  sum 
recjuired  to  make  the  compensation. 
If  you  follow  out  that  doctrine  you 
will  see  that  the  person  taking  the 
property  so  devised  or  bequeathed 
takes  it  subject  to  an  obligation  to 
make  good  to  the  disappointed  leg- 
atee the  sum  he  is  disapi^ointed.  The 
very  instrument  which  gives  him 
the  benefit  gives  him  the  benefit 
burdened  with  the  obligation,  and 
the  old  maxim  qid  sentire  commo- 
dum  sentire  debet  et  onus  applies  with 
the  greatest  force  to  sucli  a  case  as 
,  this."  By  the  court  by  Jessel,  M.  R., 
in  Pickersgill  v.  Rodger,  5  Ch.  Div. 
163,  on  p.  173.  In  Mr.  Swanston's 
note  to  Gretton  v.  Ha  ward,  1  Swans- 
ton,  433,  it  is  said:  "  1st.  That,  in  tlie 
event  of  election  to  take  against  the 
instrument,  courts  of  equity  assume 
judgment  to  sequester  tiie  benefit 
intended  for  the  refractory  donee 
in  order  to  secure  compensation  to 
those  whom  his  election  disappoints. 
2d.  That  the  surplus,  after  compen- 
sation, does  not  devolve  as  undis- 
posed of,  but  is  restored  to  the 
donee,  the  purpo.se  being  satisfied, 
for  which  alone  the  court  controlled 


§  730.] 


DOCTRINE    OF    EQUITABLE    ELECTION. 


1009 


tion  on  the  part  of  the  testator  to  dispose  of  the  property  owned 
by  anotlier  person  must  either  appear  on  the  face  of  the  instru- 
ment in  express  language  or  must  arise  from  necessary  implica- 
tion.^ It  cannot  be  presumed  to  exist  from  the  circumstances 
of  the  case  only,  or  from  the  situation  of  the  testator,  nor  can 
it  be  proved  by  his  declarations  of  intention. 

A  man  may  dispose  by  will  of  property  belonging  to  another 
which  that  other  owns  individually  and  separately,  and  in  which 
the  testator  has  no  manner  of  interest  or  title  and  no  right  of 
ownership  whatever.  Or  the  testator  may  dispose  of  property 
which  is  partly  owned  ly  another  and  in  which  he,  with  that 
other,  has  a  joint  or  common  interest  and  ownership.     Where 


the  legal  right."  In  Jennings  v.  Jen- 
nings, 21  Oliio  St.  81,  Scott,  C.  J., 
says:  "The  doctrine  of  compensa- 
tion, as  incidental  to  testamentary 
election,  is  an  old  and  well  estab- 
lished one.  And,  resting  as  it  does 
on  principles  of  the  clearest  equity, 
no  good  reason  is  perceived  for  deny- 
ing its  proper  application  to  the  case 
of  a  widow  who  elects  to  withdraw 
her  right  of  dower  from  the  opera- 
tion of  tlie  will  and  to  forego  the 
benefit  of  a  provision  made  for  her 
in  the  will  in  lieu  thereof.  A  widow 
has  a  perfect  riglit  to  insist  that  the 
dower,  which  the  policy  of  the  law 
awards  to  her,  shall  not  be  taken 
from  her  by  the  will  of  a  deceased 
liusband.  But  she  has  no  equitable 
right,  as  widow,  to  insist  tiiat  the 
benefit  intemled  by  tiie  testator  as  a 
componsjition  for  her  dower  shall  be 
treated,  ujton  her  rejection  of  it,  as  a 
lapsed  legacy  or  devise,  and  go  to  the 
heir  as  intestate  property.  The  rule 
in  cases  of  testamentary  election  is 
romi»ens{ition  or  forfeiture,  and  not 
intfjstacy.  and  the  principle  of  com- 
]M;ns;ition  ih  a[)|)Iied  in  the  case  of  an 
••lection  against  tiio  will  by  a  \vi<lo\v 
(;qually  with  tiiat  of  a  similar  eleo 
lion  by  any  other  deviwu!."  In  one 
caJMj  it  waH  held  Diat  the  property  or 
its  prfM-eefls  which  are  given  to  a 
widow  in  lieu  of  her  dower  gocH  to 
G4 


the  residuary  legatee,  when  she  re- 
nounces the  provision  made  for  her 
by  the  will  and  elects  to  take  her 
dower  in  pi'operty  which  was  in- 
cluded in  the  residuum.  Small  v. 
Marburg,  77  Md.  11,  25  Atl.  R.  930. 

1  Thornton  v.  Thornton,  11  Ir.  Ch. 
R.  474;  Judd  v.  Pratt,  13  Ves.  168; 
In  re  Booker,  W.  N.  1886.  p.  18;  Blake 
V.  Bun  bury,  4  Bro.  C.  C.  21;  Box  v. 
Barrett,  L.  R.  3  Eq.  244;  Forrester  v. 
Cotton,  1  Eden,  531,  Amb.  388;  Win- 
tour  V.  Clifton,  21  Beav.  447;  Dasii- 
wood  V.  Peyton,  18  Ves.  27.  49:  Dillon 
V.  Parker,  1  Swanston.  359,  376,  381; 
Jervoise  v.  Jervoise,  17  Beav.  566; 
Stephens  v.  Stephens.  3  Drew.  697, 
1  De  Gex  &  Jo.  62.  The  intention  to 
put  a  devisee  to  an  election  cannot 
be  inferred  from  a  recital  tiiat  the 
devisee  owns  or  is  entitled  to  an  in- 
terest in  property  under  an  instru- 
ment other  than  tlie  will,  when  tiio 
testator  does  not  attempt  to  ilisposo 
of  the  profjerty  of  the  devisee  in  tho 
will.  Tims,  for  instance  a  recital  in 
tho  will  that  one  devisee  receives  less 
than  another  because  tho  former  has 
been  providoil  for  in  a  settlement, 
tliongh  tho  will  does  not  pur|M)rt  or 
attempt  to  disiM)so  of  the  property 
tlui-s  settled,  does  not  jnit  tlie  deviseo 
to  an  election,  and  \\i\  can  take  both 
under  the  will  and  iiiiiler  tlxt  settle- 
ment.    Box  v.  Barrett,  L.  li,  3  ICq.  244. 


10 10  LAW    OF    WILLS.  [§  730. 

the  testator  disposes  of  property  belonging  to  another  person 
in  which  he  has  no  interest  whatever^  and  the  language  of  his 
"will  clearly  points  out  and  describes  such  property  and  trans- 
fers it  to  some  other  person  than  its  present  owner,  no  question 
ca.i  arise  as  to  the  intention  of  the  testator  to  give  the  property 
of  the  other  person,  and  consequently  no  necessity  for  any  con- 
struction exists.  But  where  the  testator  owns  property  in  which 
another  person  also  has  a  part  interest,  or  a  charge  thereon,  or 
where  he  owns  a  share  in  property  and  another  person  owns 
the  residue,  and  the  testator  devises  the  whole  property  in  vaguo 
or  general  language,  the  question  at  once  arises,  Does  he  intend 
to  dispose  of  the  whole  projperty,  including  the  interest  of  the  otiier 
jyerson,  or  does  he  intend  to  confine  his  disposition  of  the  prop- 
erty exclusively  to  the  interest  which  he  owns?  The  reason- 
able presumption  is  in  favor  of  the  latter  proposition,  and  the 
courts,  in  construing  a  general  disposition  of  property  in  which 
the  testator  has  only  a  partial  interest,  will  favor  a  construc- 
tion which  will  dispose  only  of  the  actual  interest  of  the  tes- 
tator. 

It  wall  thus  be  seen  that,  where  the  testator  has  a  limited 
interest  in  the  property  disposed  of,  it  is  much  more  difficult 
to  create  a  case  for  an  election  upon  the  part  of  the  person  who 
owns  it  with  him,  than  in  the  case  of  property  which  belongs 
wholly  to  another  person  in  which  the  testator  has  no  interest. 
Hence  where  the  testator  has  an  actual  interest  in  the  })roperty 
Avhich  he  disposes  of  in  general  words  which  may  or  may  not 
include  the  interest  of  the  other  person,  the  other  person  will  be 
put  to  his  election  only  if  an  election  is  absolutely  necessary  in 
order  to  carry  out  the  full  intention  of  the  testator.  If  the  tes- 
tator's language  is  cloudy  or  doubtful  or  ambiguous  in  meaning, 
so  that  it  may  be  consistent  with  the  intention  of  the  testator 
that  the  person  who  has  an  interest  in  the  property  which  he 
attempts  to  dispose  of  shall  retain  that  interest  and  shall  also 
hold  what  the  will  gives  him,  he  will  not  be  put  to  his  election. 

Accordingly  where  a  testator  devises  his  lands  located  at 
various  places,  which  are  particularly  described,  to  his  wife,  and 
it  appears  that,  while  he  owned  separately  certain  estates  in  the 
places  mentioned,  he  was  also  joint  owner  with  his  wife  in  other 
lands  in  the  same  places,  the  latter  was  not  compelled  to  elect 
between  her  right  as  a  surviving  joint  tenant  and  the  devise 


rso.] 


DOCTKINE    OF    EQUITABLE    ELECTION. 


1011 


by  the  will.  A  testator  will  be  presumed  by  a  general  devise 
to  intend  to  give  only  his  property  over  which  he  has  an  un- 
limited power  of  disposal,  and  in  which  no  other  person  has  any 
interest.  The  fact  that  he  describes  his  lands  by  location  in  a 
general  devise  does  not  raise  a  case  for  an  election  simply  be- 
cause it  ma}'  happen  that  the  devisee  also  has  an  interest  in. 
other  lands  located  there  jointly  with  the  testator. 

The  intention  of  the  testator  that  a  devisee  shall  be  put  to  an 
election  must  be  either  distinctly  expressed  in  the  will,  or  it 
must  arise  from  the  strongest  and  most  necessary  implication. 
Xo  man  can  be  deprived  of  his  property  merely  by  conjecture. 
It  must  appear  distinctl}'  and  clearly  that  permitting  the  party 
to  retain  both  benefits  would  be  irreconcilable  and  inconsistent 
with  the  will;  and  that  to  do  so  would  throw  the  estate  in  con- 
fusion and  direct  the  bounty  of  the  testator  into  channels  very 
different  from  those  in  which  the  will  has  caused  it  to  flow. 
The  doctrine  of  election  is  designed  to  prevent  the  perversion 
of  the  testator's  intention.  And  if  the  will  may  have  its  full 
effect  without  an  election,  the  person  to  whom  a  devise  is  given 
will  not  be  compelled  to  elect;  he  may  then  take  his  own  and 
also  what  the  will  gives  him  belonging  wholly  to  the  testator.* 

As  an  illustration  of  this  rule  we  may  instance  a  general  be- 


1  Hilliard  v.  Binford,  10  Ala.  (1«47), 
'.i77,  987;  Green  v.  Green,  7  Port.  (Ala., 
in:i»).  9;  Morri.son  v.  Bowman.  29  Cai. 
:W7,  318;  Ailing  v.  ChatfleUl,  V2  Conn. 
270;  Ifall  v.  I'ierson.  03  Conn.  :j:{2,  ;34."); 
barter's  Aji;»eil,  ."59  Conn.  570,  587; 
Wliitin^'-s  Ajjpeal,  07  Conn.  380.  389; 
T(H,\ni  V.  Hardeman,  7  Ga.  (1849).  20; 
Mofire  V.  Mfxjre,  4  Ind.  App.  115,  118; 
Gorliam  v.  Dodge,  123  111.  528,535; 
l'>ailey  v.  Dunean,  4  Mon.  (Ky.)  205; 
Hall  V.  Hall,  1  Bland  Ch.  (.Md.)  130, 
135;  I..aidler  v.  Young,  2  liar.  &  J. 
(Md.)09;  Creswell  v.  Law.son,  7  (iill 
A:  J.  (Md.)228;  MeKlfresh  v.  Sehley, 
2  Gill  (Md.),  181.  199;  WaterH  v. 
Ifowanl.  1  .Md.  Ch.  112;  Watwjn  v. 
Watson,  r,'H  .M.'ihH.  152;  Norris  v. 
Clurk,  ION.  .J.  K<\.  (18.51),  51;  St<-<-l.) 
V.  Kislicr,  1  KdwanlH'  Cli.  (S.  Y.)  43.5, 
451;  .Smith  v.  KniHkt-iri,  4  .JohnH.  Ch. 
'N.  Y.,  1819),  9;  La.sher  v.  Lji.sher,  13 


Barb.  (N.  Y.)  100;  Jackson  v.  Clunvh- 
ill,  7  Cow.  (N.  Y.,  1827),  287;  Adsit  v. 
Adsit,  2  Johns.  Ch.  448,  450;  Larraboo 
V.  Van  Alstine,  1  Johns.  (X.  Y.,  1800), 
370;  Wilson  v.  Arny,  1  Dev.  &  Bat. 
(N.  C.)  370;  Havens  v.  Sackett,  15  N. 
Y.  305;  In  re  llayden.  7  N.  Y.  S.  313. 
315;  Hamilton  v.  Buckwaltfr,  2 
Yesites  (I'a..  1800),  389;  Duiu-an  v. 
Duncan,  2  Yeates  (Ph.),  302;  Huston 
V.  Cone,  24  Ohio  St.  (1873),  11.  20; 
Quarles  v.  Garrett,  4  Des.  (S.  C.)  140; 
Wils<»n  V.  Hayne,  Clunes'  L.  (S.  C, 
1h:{9),  37.  40;  Williams  v.  (Jray.  1 
Coldvv-.  (Tnnn.)  101;  Ih-rhert  v.  Wr.-ii. 
7  Crancrh,  370;  Blimt  v.  (Joe,  5  Call 
(Vu.),  481;  Lord  Kam-liire  v.  I-ady 
Parkins,  0  Dow,  149.  179;  Maddison 
V.  ('Iia|>inan,  1  John,  it  Himm.  470; 
Padhury  v.  (lark.  2  M.  it  G.  29K; 
Pi«-kcr.sgill  V.  Uodger,  K  It.  5  Ch.  D. 
103,  170. 


1012 


I.AW    OF    ■WILLS. 


[§  T30. 


Cjuest  by  a  testator  of  all  his  property  or  estate  to  a  person  with 
whom  he  is  joint  owner  of  personal  property.  The  person  who 
is  a  joint  tenant  with  the  testator,  and  who  receives  a  legacy 
under  the  will,  is  not  compelled  to  elect  between  the  legacy 
and  what  he  or  she  would  take  by  survivorship  by  a  gift  to 
others  of  all  the  estate  of  the  testator  of  ichatever  Jcind}  Thus, 
where  corporation  stock  stood  in  the  name  of  the  testator  and 
liis  wife  jointly,  the  latter  was  not  put  to  an  election  where  her 
husband  devised  "  my  shares  "  in  the  A.  company  to  a  stranger, 
altliough  the  husband  had  no  stock  of  his  own  of  which  he  was 
sole  owner.'  The  intention  to  put  a  person  to  an  election  must 
appear.  Thus  a  legatee,  by  his  acceptance  of  a  money  legacy, 
is  not  estopped  from  claiming  that  land  which,  by  the  will,  was 
given  to  a  residuary  devisee,  was  owned  by  the  legatee,  and 
that  a  deed  signed  by  him.  absolute  on  its  face,  by  which  the 
"testator  held  the  land,  was  in  fact  a  mortgage,  and  that  the 
morto-affe  debt  had  been  satisfied,  unless  the  intention  to  re- 
quire  an  election  is  clear.^  But  where  A.,  having  only  a  life 
■estate,  attempted  to  sell  the  fee  which  belonged  to  his  children 


1  Dummer  v.  Pitcher,  5  Sim.  35,  2 
3Hy.  &  Cr.  262. 

2  Shuttleworth  v.  Greaves,  4  My.  & 
Cr.  38.  "  The  authorities,  as  I  under- 
stand it,  mean  no  more  than  to  point 
out  forcibly  the  difficulty  there  is  in 
raising  a  case  of  election  where  the 
testator  has  a  limited  interest  in  the 
property  as  to  which  the  election  is 
to  be  raised ;  and  no  doubt  there  is 
more  difficulty  in  such  cases  than  in 
the  ordinary  case  of  the  disposition 
of  an  estate  belonging  to  another 
person,  and  in  which  the  testator  had 
no  interest,  inasmuch  as  every  testa- 
tor must  prima  faciz  be  taken  to 
have  intended  to  dispose  only  of  what 
he  had  power  to  dispose  of.  and  as,  in 
order  to  raise  a  case  of  election,  it 
must  be  clear  that  there  was  an  in- 
tention, on  the  part  of  the  testator, 
to  dispose  of  wliat  he  had  not  the 

■  right  or  power  to  dispose  of."  By 
the  court  in  Wintour  v.  Clifton,  8 
De  G.,  M.  &  G.  641.  650.  In  order 
that  a  case  for  election  mav  arise  it 


is  absolutely  essential  that  the  testa- 
tor should  intend  to  dispose  of  an- 
otlier  person's  property.  Thus,  where 
a  testator,  after  making  his  will  in 
which  he  devised  land  to  his  son  and 
daugliter,  respectively,  conveyed  to 
his  daughter  a  portion  of  the  land 
which  he  had  devised  to  his  son,  the 
daughter  is  not  required  to  elect  be- 
tween the  property  given  by  this  con- 
veyance and  that  by  the  will,  for  the 
reason  that,  in  the  absence  of  any 
proof  showing  that  the  conveyance 
was  in  satisfaction  of  the  devise,  it 
will  be  presumed  that  the  testator, 
having  by  law  a  full  ]iower  of  dis- 
position over  his  own  property  dur- 
ing his  life.'though  he  had  made  a 
will,  intended  she  should  have  both. 
Hattersley  v.  Bassett,  25  Atl.  R.  332, 
50  N.  J.  Eq.  577. 

3  Tompkins  v.  Merriman,  155  Pa.  St. 
440,  447,  26  AtL  R"  659,  citing  Zinn 
V.  Lebo,  151  Pa,  St.  345;  Stump  v. 
Findley,  2  Rawle  (Pa.),  ICa 


§   731.]  DOCTKIXE    OF    EQUITABLE    ELECTION.  101-\ 

B.  and  C,  covenanting  that  v/lien  they  should  at:;ain  their  ma- 
jority they  would  join  in  the  conveyance,  and  B.  did  so,  while- 

C.  refused,  it  was  held  that,  where  C.  accepted  property  devised 
to  hira  by  Lis  father,  upon  the  express  condition  that  if  he  re- 
fused to  confirm  the  sale  he  should  not  be  entitled  to  it,  he  should 
be  enjoined  from  claiming  any  interest  in  the  property  which  had 
been  sold.^  So,  too,  where  A.,  who  had  only  a  life  interest,  de- 
vised the  land  to  several,  giving  B.,  who  was  a  part  owner  of  the 
fee,  a  life  estate  in  the  same  lands  devised,  and  all  the  devisees 
entered  upon  the  land,  B.  joining  in  selling  it,  B.,  having  elected 
to  take  under  the  will  by  accepting  the  life  estate  given  by  the 
will,  was  estopped  from  claiming  under  the  deed  as  remainder- 
man in  fee.-  An  election  is  also  required  where  a  testator  gives 
property  to  A.  upon  the  condition  that  he  shall  refrain  from 
pressing  a  claim  which  he  has  against  B,  The  proviso  in  such 
case  constitutes  a  gift  of  A.'s  property  to  B.,  and  A.  is  required 
to  elect  between  the  inconsistent  interests.^ 

§  731.  Finality  of  an  election  — Its  revocation  when  made 
by  mistake  or  procured  by  fraud  or  bad  faith. —  An  election, 
when  made  by  a  competent  person  with  a  full  understanding 
of  his  rights  and  a  reasonable  knowledge  of  the  facts,  is  final, 
both  as  to  him  and  as  regards  his  representatives.  Particularly 
is  this  so  where  the  rights  of  third  persons  who  are  purchasers 
of  the  property  in  good  faith  and  for  value  have  attached,  who 
would  be  prejudiced  by  permitting  a  revocation  of  the  election. 
The  maxim  ignorantia  legls  neminem  excusat  is  applicable  to 
the  case  of  a  person  making  an  election  between  a  provision 
which  was  made  for  him  in  a  will  and  the  property  which  be- 
longs to  him  and  which  by  tiie  will  is  given  to  another.  This 
rule  is  most  frequently  invoked  in  the  case  of  the  willow's  elec- 
tion. 

As  a  matter  of  fact  it  will  be  found  that  most  persons  of 

1  Leonard  v.  Crotnmeliri,  1  Ivlw.  and  her  heirs  after  lier  dwith.  must 
(N.  Y.)  200.  elect  between    tlie    legacy  ami  tlio 

2  Borden  v.  Ward  (.S.  C,  IHSO),  9  S.  farm.  Fulton  v.  Moore,  iin  Pa.  St.  ;}08. 
K.  R.  liOO.  And  the  SiUiie  rule  wasajiplied  where 

'Miller  V.Cotton,  .If;.!. :!  II.    Where  tin*  testator  disposed    of  "  pn>p»>rty 

the  testator  deviwd  a  farm,  which  yet  <lue  my  wife  as  heiress,"  at  the 

was  owiMjd  hy  liis  wife,  as  tiiou;;li  it  sjime  time  giving  lier  a  legacy.   Clay 

wa.H  his  own,  and  ^ave  her  a  legacy  v.  Hart,  7  D.iiia  (Ky.),  0. 
out  of  hi.s  estate,  it  was  held  that  she, 


1014  LAW    OF   WILLS.  [§  731. 

both  sexes  are  well  acquainted  with  the  rule  of  law  by  which 
a  woman  enjo3's  a  dower  right  to  and  interest  in  the  real  proj)- 
erty  of  her  husband  of  which  he  cannot  dejirive  her  without 
her  consent.  If,  however,  it  should  happen  that  the  w^idow  or 
other  person  is  not  informed  as  to  his  or  her  legal  rights,  and 
it  appears  that  the  person  electing  was  induced  by  one  who 
is  well  informed,  and  who  knows  that  the  former  is  igno- 
rant,' to  relinquish  what  she  would  receive  as  dower,  or  he 
for  any  interest  he  ma}^  be  entitled  to,  in  exchange  for  an  in- 
iidequate  gift,  the  election  would  undoul)tedly  be  set  aside  in 
equity.  Such  a  state  of  things  will  involve  fraud  which  equity 
Avill  not  tolerate.  The  party  who  holds  the  legal  title  to  the 
land  in  which  the  dower  has  been  relinquished  will  be  decreed 
in  equity  as  a  trustee  for  the  widow,  at  least  so  far  as  her  right 
of  dower  is  concerned.  But  the  cases  in  which  a  widow,  or  any 
other  person  who  has  made  an  election,  will  be  permitted  to 
revoke  it  are  not  limited  to  those  in  which  actual  fraud  is  in- 
volved. Equity  will  always  relieve  against  accident  or  mis- 
take. 

"While  the  consequences  of  a  mistake  of  law  are  not  relieved 
against  in  equity,  a  mistake  of  fact  is  always  a  subject  for  the 
consideration  of  equity,  which  will  administer  the  appropriate 
remedy  in  every  case  where  the  rights  of  innocent  parties  who 
are  purchasers  for  value  will  not  be  injured.  The  rule  is  that 
the  person  called  on  to  elect  must  be  permitted  to  acquire  a  rea- 
sonable knowledge  of  the  condition  and  the  value  of  the  prop- 
erty which  he  is  to  forego  as  compared  with  that  which  he  is  to 
receive.  He  cannot  be  required  to  make  an  irrevocable  election 
unless  he  has  such  a  knowledge  of  the  subject  as  will  enable  him 
to  make  an  intelligent  choice.^    For  it  is  not  necessary  that  the 

'  In  Light  V.  Light,  21  Pa,  St.  407,  any  fraudulent  advantage  taken,  her 

in   18.>3,   Black,   C.   J.,  said:    "If  a  acts,  done  under  the  influence  of  it, 

■widow  -who  is  acquainted  with  all  are  as  binding  upon  her  as  if  she 

the  facts,  but  is  wholly  unaware  that  knew  the  law  perfectly." 

by  law  she  has  a  right  of  dower,  is  2  TJiough    an  election  which  lias 

induced  by  one  who  knows  the  law,  been  intelligently  made  is  final,  an 

and  at  the  same  time  knows  her  ig-  election  may  be  made  to  take  effect 

norance  of  it,  to  release  or  assign  it  upon  the    occurrence  of  a   contin- 

for  a  totally  inadequate  considera-  gency;  as,  for  example,  an  election  to 

tion,  she  ought  to  be  relieved.     But  take  effect  if  the  part}' electing  shall 

where  the  error  is  her  own,  and  no  die  within  a  certain  period.     McCal- 

imposition   has  been  practiced  nor  lister  v.  Brand,  11  B.  Mon.  (Ky.)  370. 


I  T31.] 


DOCTRINE    OF    EQUITABLE    ELECTIOX. 


1(.>15 


l>artv  who  has  a  right  to  elect  should  have  been  imded  or  act- 
ually deceived  by  acts  or  spoken  words  in  order  that  he  may 
be  permitted  to  revoke  his  election.  His  legal  rights  shauld 
be  explained  to  him.  He  should  be  informed  by  the  executor 
of  all  the  circumstances  of  the  estate;  and  if  those  who  will 
gain  by  his  election  to  tahe  under  the  will  are  silent,  and  by 
their  silence  permit  him  to  take  property  under  the  \y\\\  which 
is  of  little  value  as  compared  vydh  ichat  he  has  the  right  to  talce 
against  the  will,  they  cannot  subsequently  complain  when,  after 
obtaining  a  fuller  knowledge,  he  repudiates  his  choice  and  re- 
linquishes what  the  will  has  given  him.^     Thus,  the  receipt  of 


Though  a  widow  who  is  desirous  of 
revoking  her  election  has  received 
the  benefit  under  the  will  and  ex- 
pended a  part  of  it,  she  may,  on 
being  more  fully  informed  of  her 
rights,  revoke  her  election  if  the  pay- 
ment of  the  legacy  to  her  has  no 
effect  in  preventing  a  distribution  of 
the  estate  in  accordance  with  the 
intentions  of  the  testator.  Yorkly 
V.  Stimson,  97  N.  C.  230,  1  S.  E.  11. 
4.'>2. 

J  Clark  V.  Hershey,  52  Ark.  473,  13 
S.  W.  R  1077;  Burroughs  v.  De 
Couts,  70  CaL  (1886),  871;  Dabney  v. 
Biiiiey  (1871).  42  Ga.  521.  523;  Sewell 
V.  Smith,  52  Ga.  (1874),  567;  Vanzant 
T.  Bigham,  76  Ga.  759;  Carper  v. 
Crow).  149  111.  405,  480;  AVilbanks  v. 
"VVilbanks,  18  111.  (1857),  17,  21;  Ward 
V.  Ward,  133  III.  (1890),  417,  25  N.  E. 
R  1012;  Hawkins  v.  Boliling.  48  N. 
E.  R  94,  96,  168  111.  (1897),  211;  Fry 
V.  Morrison,  159  III.  254,  42  N.  E.  R. 
771;  (Jarn  v.  Gam,  123  Ind.  087,  0H9, 
35  N.  MR  391;  Hicliart  v.  Ki(;hart, 
80  Iowa  (1870),  465;  Sill  v.  Sill,  31 
Kan.  (1884).  248;  Gri.ler  v.  Eubanks, 
12  B\ihI»  (Ky.),  510;  Stoddard  v.  Cut- 
coinpt.  41  Iowa.  329,  ;J31;  Itt'ppcrt  v. 
P»-lii/.z;iin).  83  Iowa.  497.  500;  Toni- 
lin  V.  .laynn,  14  B.  .Men.  (Ky..  1H53'. 
102;  IawIi  v.  l'rcbHl«'r.  39  Ind.  492; 
<'raig  v.  Conr)V('r.  80  .Me.  353,  355; 
■Wft'kH  V.  l'att«!n,  \h  Mf;.  42.  45;  U.-.mI 
V.  Di'kcrrnan,  12   Pick.  (.Mahs.)   119, 


150;  Pratt  v.  Douglas,  38  N.  J.  Eq. 
516;  Macknet  v.  Macknet,  29  N,  J. 
Eq.  54,  57;  Havens  v.  Sackett,  15  N. 
Y.  365;  Adsit  v.  Adsit,  2  Johns.  Ch. 
(N.  Y.,  1817),  448,  450;  Hall  v.  Hall, 
2  McCord  (S.  C),  Eq.  269;  Yorkly  v. 
Stimson,  97  N.  C.  263,  1  S.  E.  II.  452; 
Davis  v.  Davis,  11  Ohio  St.  386  (hold- 
ing tliat  an  order  of  the  court  is  nec- 
essary in  the  case  of  a  revocation  of 
an  election);  Huston  v.  Cone,  24 
Ohio  St.  (1873),  11,  20;  Andersons  Ap- 
peal, 86  Pa.  St.  476;  Duncan  v.  Dun- 
can, 2  Yeates  (Pa,),  302;  Liglit  v. 
Light,  21  Pa.  St.  407,  412;  Kreisers 
Appeal,  69  Pa.  St.  194;  Craig  v. 
Waltliall,  14  Gratt.  (Va.)  518,  525; 
In  re  Woodburn's  Estate,  138  Pa.  St. 
60(i.  27  W.  N.  C.  305,  21  Atl.  R  16; 
Snelgrove  v.  Snelgrove,  4  Des.  Eq. 
(S.  C.)  27;  Leacli  v.  Leach,  65  Wis. 
284,  291;  United  States  v.  Duncan,  4 
McLean  C.  C.  99;  Wilson  v.  Tiiorn- 
bury,  L.  R  10  Ch.  A  pp.  239:  Briscoe 
v.  Briscoe,  7  Ir.  Eq.  R.  123,  1  Jo.  &  L. 
334;  Campbell  v.  Ingilby,  21  Beav. 
567,  582;  Swectinan  v.  .Sweet  man.  2 
L  R  Eq.  141;  Kdwanlsv.  Moigari.  i:j 
Price,  7H2.  1  Bligli  (N.  S.).  101:  Win- 
tour  V.  Clifton.  21  Beav.  117.  16s.  8 
De  (J.,  Mac.  tV:  ^i.  Oil;  I'us.'V  v.  Des- 
bouverie,  3  I'.  Wnis.  315:  Hoynton  v. 
Boyntoii,  I  I'.ro.  C.  C.  445;  WaU"  v. 
Wake.  3  I'lo.  C.  C.  255:  Kidney  v. 
('ouHsmaker.  12  Vt-s.  130,  151;  Dillon 
v.  Barker,  1  Sw.  3.S1,  :W2. 


lOlG  LAW    OF    %YILLS.  [§  731. 

a  Icf^acv  "will  not  prevent  the  legatee  from  subsequently  con- 
testing a  will  upon  the  grounds  of  testamentary  incapacity 
and  undue  influence,  where,  at  the  time  of  his  acceptance  of 
the  legacy,  he  did  not  know  of  the  facts  constituting  the  undue 
influence;  while  it  appeared  that  other  beneficiaries  knew  of 
these  facts  and  fraudulently  kept  their  knowledge  of  them 
from  him,  with  a  view  of  procuring  him  to  accept  the  legacy.^ 

Ordinarily  a  court  of  equity  will  give  relief  where  a  mistake 
of  fact  or  a  flagrant  misunderstanding  as  to  the  rights  of  the 
party  is  shown ;  but  equity  will  not  relieve  a  party  who  has 
failed  to  use  due  diligence  to  ascertain  his  rights.  In  many 
states  the  statutes  fix  a  time  within  w4iich  the  right  to  elect 
must  be  exercised,  and  they  are  in  the  nature  of  statutes  of 
limitation.  They  will  prevent  a  subsequent  exercise  of  the 
right.  Ignorance  of  the  law  is  no  excuse,  either  in  equity  or 
in  law ;  and  as  the  widow  or  other  person  having  the  right  to 
elect  is  conclusively  presumed  to  know  the  law,  he  or  she  will 
be  limited  to  the  statutory  period  to  exercise  the  right.  It  is 
therefore  the  duty  of  such  persons  to  ascertain  the  extent  of 
the  estate,  and  if  they  fail  to  make  an  election  within  the  pe- 
riod limited  by  statute,  equit}"  will  not  extend  the  time  solely 
because  they  were  ignorant  of  the  nature  and  extent  of  the 
property.^ 

But  where  a  person  has  been  prevented  from  making  an  elec- 
tion by  some  unavoidable  accident  or  by  the  fraud  of  others, 
equity  will  invoke  the  maxim  "  that  has  been  done  w^hich  ought 
to  have  been  done,"  and  will  make  an  election  for  the  person 
as  of  the  date  of  the  death  of  the  testator.  "Where  the  person 
who  has  a  right  to  elect  has  died  without  doing  so,  and  his  fail- 
ure to  elect  is  either  the  result  of  the  silence  or  of  the  fraud  of 
others,  or  of  circumstances  over  which  he  has  had  no  control, 

1  "White  V.  Maj-hall  (Ky.),  25  S.  W.  her  to  elect  after  the  statutory  period 

R.  881.     If  a  widow  intending  to  dis-  has  expired.     Slie  will  be  placed  in 

sent  from  her  husband's  will,  to  re-  the  same  situation  in  every  respect 

nounce  her  rights  under  it,  and  to  as  though  she  had  dissented  in  time, 

accept  her  dower  in  place  of  what  and  as  the  executor  is  a  qnasi-truatee, 

the  will  gave  her,  is  prevented  from  the  legal  period  of  limitation  does 

doing  so,  within  the  time  required  not  apply.     Smart  v.  Waterhouse,  10 

by  the  statute,  by  the  fraud  of  the  Yerg.  (Tenn.,  1833),  94,  104 

executor  and  his  false    statements  2Akin  v.  Kellogg,  119  N.  Y.  441,  444 

of  the  value  of  the  estate,  a  court  of  (1890),  7  Am.  Pro.  R.  570,  575. 
equity  will  relieve  her  and  permit 


^   732.]  DOCTIUXE    OF   EQUITABLE    ELECTION.  lUlT 

as,  for  example,  where  he  Avas  mentally  unable  to  give  any  at- 
tention to  the  matter,  the  court  will  nuike  the  election  for  hiui, 
or,  as  an  exception  to  the  general  rule,  permit  his  heirs  to  do  so.^ 

§  73*2.  Case  for  election  does  not  arise  where  will  is  in- 
yalid, —  It  was  settled  in  England  as  earl}-  as  1749  that  neither 
a  devise  of  land  by  an  infant,  nor  by  a  married  woman  not  hav- 
ing capacity  to  devise,  nor  a  devise  contained  in  a  will  which 
■was  improperly  executed  as  a  devise  of  land,  but  which  was 
valid  to  pass  personal  property,  v.ould  put  the  heir  to  an  elec- 
tion. 

Prior  to  the  passage  of  the  Victorian  Statute  of  "Wills  an 
unattested  and  often  an  unsigned  writing  was  valid  as  a  will 
of  personal  property ;  while  an  attested  and  subscribed  instru- 
ment would  be  required,  under  the  statute  of  frauds,  in  the 
case  of  a  devise  of  real  estate.  The  question,  therefore,  would 
arise  whether  th.o  heir  was  compelled  to  elect  in  the  case  of  an 
unattested  will  which  was  valid  to  pass  personal  property,  but 
which  was  invalid  as  a  devise  of  land,  and  which  gave  the  heir 
a  legacy  while  devising  to  a  stranger  land  which  would  have 
descended  to  the  heir.  The  English  courts  generally  held  that, 
ill  order  that  the  heir  should  I'c  compelled  to  elect,  there  must 
be  a  will  valid  to  pass  real  estate.  A  will  not  valid  for  that 
})urpose  affords  no  intention  to  devise  land  away  from  the  heir; 
and,  as  the  intention  to  devise  land  away  from  the  heir  was 
not  before  the  court  by  an}'  legal  evidence,  the  will  would  be 
read  in  equity  as  though  the  invalid  devise  was  not  in  it.  So 
in  the  case  of  a  will  [)roperly  executed  by  a  competent  testator 

1  Thus,  where  the  testator  in  his  land  in  question  was  worth   nuich 

will  gave  lii.s  son  the  riglit  to  jmr-  more  tlian  the  sum  mentioned.     At 

(•ha.se  a  piece  of  land  for  a  certain  tlie  tlate  of  tlie  death  of  tlie  testator 

sum,  and  gave  him  a  fixeil   period  tiie  son  was  on  liis  deatli-lunl  and  sur- 

within  wliicli  tlie  purcliase  price  was  vived  only  a  few  days,  during  wliich 

to  bo  paid,  and  provided  also  that,  if  time  he  was  unable  to  attend  to  any 

he  Hhould  elect  to  purchase  under  tlio  busine-ss.     It  appeared  that  Ijo  had 

will,  the  land  in  question  shouhl  vest  fully  mad(i  up  his  mind  to  buy,  and 

in  t«'Ht'itor's  trustee  for  tlie  life  of  tlie  tliat  tlie  trustees   knew  of  this.     It 

wjn  with  remainder  in  trust  for  his  was  therefore  JH'Id  that  no  declara- 

heirs,  but  mentioned  neither  the  time  tion,  oral  or  written,  of  an  intention 

withm   nor  the  mf)de  in  which  tim  to  elect  was  required,  anil  that  his 

election   must  b<;  made,  it  was  held  heir  had  the  right  to  take  the  land 

xmder  the  cireuniHtanceH  that  a  writ-  on  tlie  condition  named.     Parker  v. 

ton  election  waH  not  require<l.     The  Si-eiey,  :!H  Atl.  li.  'JHO  (N.  .1.  Kq..  \H'.)7). 


1018  LAW   OF   WILLS.  [§  732. 

to  pass  personal  property,  but  not  properly  executed  to  pass  real 
property,  in  which  the  testator  devised  his  land  to  a  stranger, 
while  giving  a  legacy  to  the  heir,  the  latter  was  not  obliged  to 
elect.  lie  might  take  both  the  legacy  and  the  land  which  de- 
scended to  him.^  So,  also,  an  infant  at  the  common  law  might 
execute  a  testament  disposing  of  his  personal  property,  though 
he  could  not,  until  he  attamed  his  majority,  devise  his  lands.- 
Hence,  if  a  will,  which  had  been  made  by  an  infant,  attempted 
to  devise  his  lands,  which  devise  would  be  invalid,  also  gave 
the  heir  of  the  infant  a  legacy,  the  heir  was  not  compellable  to 
elect  between  the  legacy  given  him  by  the  will  and  the  lands 
which  would  descend  to  him  by  reason  of  the  partial  invalidity 
■of  the  will.     He  might  take  both.' 

The  same  rule  was  applicable  in  the  case  of  a  married  woman 
who,  independently  of  modern  statute,  could  not  devise  her 
lands,  even  with  her  husband's  consent,  married  women  being 
by  statute  expressly  excepted  from  the  operation  of  the  statute 
S'2  Henry  YIII,  chapter  1,  conferring  the  power  to  devise  lands. 
In  consequence  of  this  fact  the  real  property  of  a  married 
woman  was  usually  settled  on  her  in  trust  with  a  power  of  ap- 
pointment in  her,  and  she  might  then  appoint  the  legal  or  equi- 
table interest,  and  her  appointment  would  be  enforced  in  equity. 
It  was  valid,  not  as  a  will  under  the  statute,  but  as  an  execu- 
tion of  the  power  created  in  the  original  deed  of  settlement.^ 
If,  however,  a  married  woman  devised  lands  which  were  set- 
tled to  her  separate  use  to  the  heir,  or  gave  him  a  legacy,  and 
in  the  same  will  devised  land  "which  was  not  thus  settled  to 
some  person  other  than  her  heir,  the  latter  was  not  compelled 
to  elect  between  what  the  will  gave  him  and  what  he  would 
have  taken  as  an  heir.  The  testatrix  not  having  capacity  to 
devise,  her  will  was  void  as  far  as  it  attempted  to  dispose  of 

1  See  cases  cited  in  note  3.  Kearney  v.  Macomb,  16  N.  J.  Eq.  lS9. 

-  Ante, '^  120.  Compare  Carper  v.   Crowl.  149  111. 

3Hearlev.Greenbank,  lVes.Sr.  298,  478,  36  N.  E.  R.  1040.     And  see  also 

306,  3  Atk.  695, 697,  715, 717;  Carey  v.  Tliellusson  v.  Woodford.  13  Ves.  209; 

Askew. SVes. 492, 1  Cox. 341,. 344;  Sta-  Buckeridge   v.  Ingram,  2  Ves.  652, 

pies  V.  Hawes,  24Misc.  R.  475;  Pryor  665;    Sheddon    v.  Goodrich,  8  Ves. 

V.  Pendleton  (Tex.,  1898),  47  S.  W.  Pu  481,  482;  McElfresh  v.  Schley,  2  GiU 

706;   Goodrich  v.  Snelgrove,  4  Des.  Old.),  181;  Jones  v,  Jones,  8  Gill,  197. 

<S.   C,   1812),   Eq.    274;    Melchor    v.  *  Ante,  ^  120. 
Burger,  1  Dev.  &  Bat.  (X.  C.)  634,  635; 


§  732.]     '    DOCTRINE  OF  EQUITABLE  ELECTION.  1010 

lands  wliich  were  not  settled  to  her  separate  use.  The  heir 
of  the  married  woman  could  take  under  the  will  and  likewise 
as  an  heir.  The  personal  ])roperty  of  the  married  woman  be- 
longed to  her  husband,  though  she  might  dispose  of  it  by  her 
will  Avith  his  consent,  and,  if  it  Avere  settled  on  her  to  her  sepa- 
rate use,  without  his  consent.  So  where  a  woman  made  a  will 
by  which  she  gave  property  to  her  husband  over  which  she  had 
a  power  of  appointment,  and  in  the  same  will  gave  property 
which  was  not  settled  to  her  separate  use  to  some  person  other 
than  her  husband,  which  devise  or  bequest  was  invalid  unless 
her  husband  should  consent  to  it,  the  latter  was  not  compelled 
to  elect.  He  could  claim  the  property  devised  to  him  out  of 
his  wife's  separate  estate,  while  at  the  same  time  repudiating 
the  will  so  far  as  it  gave  away  property  which  he  had  a  right 
to  claim  as  her  husband.^ 

Although  the  rule  that  the  heir  is  not  compelled  to  elect  in 
tlio  case  of  a  will  which  is  valid  to  pass  personal  estate,  but  in- 
valid to  pass  real  estate,  is  well  settled,  it  has  not  received  the 
unanimous  approval  of  the  courts.  Of  course  if  a  legacy  given 
to  the  heir  in  an  improperly  attested  or  partly  invalid  will  is 
upon  an  express  condition  that  the  legatee  shall  give  up  real 
estate  .which,  by  the  will,  is  given  to  another  person,  a  case  of 
election  arises,  and  the  heir  cannot  take  both  the  legac}''  and 
the  undisposed  of  real  estate.- 

The  condition  is  express,  and  a  distinction  between  an  ex- 
press condition  and  an  implied  condition  has  been  made.  But 
the  distinction  is  ratlier  technical,  and,  inasmuch  as  the  doctrine 
of  election  is  largely  based  upon  a  presumption  of  intention 
which  involves  an  implied  condition,  it  is  not  easy  to  see  why 
or  in  what  respect  tlie  case  of  tlie  heir  should  form  an  excep- 
tion to  the  general  rule.  Tlie  will  so  far  as  it  gives  personal 
property  is  valid,  and  all  of  it,  so  far  as  it  shows  the  intention 
of  the  b'stator  ritjanliiKj  siirh  proprrti/^  outjld  to  he  natJ.  ]f  on 
perusing  the  whole  will  it  is  apparent  that  the  testator  intended 
the  heir  to  elect,  though  ho  has  not  expressly  so  stated  his 
int<;ntion,  why  should  not  the  condition  to  elect  bo  implied?' 

IRich  V.  Cockoll.  0  V.s.  vm.  481,  482,  -IfHi:  Vamlykf's  ApiM«ul.  00 

2H«'arle  v.  ftrr-erihank.  1   V«'s.  Sr.  I'lu  St.  48'.>;  Kfurtu'y  v.  Maciunb,  16 

298,  .'JW:    li«>nKlitoii    v.   HoiiKliton.  2  N.  J.  K(|.  IW.  VM\. 

Vhh.  Kr.  12;  Cap-y  v.   .\sk<'W.  H  Vrs.         ^Sln'.l<l<in  v.  (MKMlricli.  8  Vph.  481, 

41i2,  45i7;  Slie'Moii  v.  « ;.«..lri<li.  H  V.-s.  VM\\  (JanliiK-r  v.  rrii,  I  Jac-.  i"t  Walk. 


1020  LAW    OF   WILLS.  [§ 


•?.9 


Inasmuch,  however,  as  the  modern  statutes  of  Avills,  both  iu. 
Enghmd  and  in  America,  require  the  same  formalities  of  exe- 
cution in  the  case  of  wills  bequeathing  personal  property  as  ia 
the  case  of  wills  devising  real  property,  and  inasmuch  as  mar- 
ried women  have  the  power  to  dispose  of  all  land  owned  by 
them,  the  question  discussed,  while  of  historical  interest,  is  at 
the  present  time  of  little  practical  importance,  except  so  far 
as  the  disposal  of  an  infant's  land  is  concerned,  or  so  far  as  a 
will  devising  laud  away  from  the  heir  may  be  invalid  because 
the  devise  is  in  conti'avention  of  the  rule  of  perpetuities  or  is 
otherwise  illegal. 

Whether  the  doctrine  of  election  is  applicable  to  the  case  of 
a  will  which  gives  a  benefit  to  the  heir,  where  the  testator  sul>- 
sequent  to  its  execution  has  acquired  other  land  which  does  not 
_pass  under  it,  has  been  dififerentl}'-  decided  in  England  and 
America.  In  England  it  was  held,  prior  to  1  Yic,  c.  2G,  that 
the  heir  of  the  testator  might  take  what  the  will  gave  him  as 
well  as  the  after-acquired  land  which  the  testator  had  attempted 
to  devise,  but  upon  which  the  will  did  not  operate.  lie  was  not 
under  the  necessity  of  relinquishing  the  land  devised,  for  the  law 
raised  the  conclusive  presumption  that  by  failing  to  republish 
the  will  the  testator  intended  that  his  after-acquired  lands  should 
descend  to  the  heir.^  In  the  United  States  the  authorities  are  di- 
vided upon  this  question.  It  has  been  held  that  where  a  testator 
gave  A.  real  property  and  also  made  him  a  residuary  legatee  by  a 
clause  not  sufficient  to  pass  after-acquired  lands,  and  devised  prop- 

22;  "Wilson  v.  Wilson,  1  De  Gex  &  if  the  purcliase  had  not  been  com- 
Sinale,  152;  Brodie  v.  Barry,  2  Ves.  pleted  in  his  life-time,  his  executrix 
&  Bea.  127,  i:30;  Carey  v.  Askew,  1  should  complete  it  out  of  his  per- 
Cox,  341,  2-14;  Melchor  v.  Burger,  1  sonal  estate,  and  cause  such  property 
Dev.  &  Bat.  (N.  C.)  Eq.  634,  637.  to  be  assured  and  limited  to  the  uses 
1  Ciiurchman  v.  Ireland,  4  Sim.  520,  therein  expressed  concerning  it.  In 
523,  529,  1  Russ.  &  My.  250;  Thellus-  1834  said  freehold  property  was  con- 
son  V.  Woodford,  13  Ves.  209,  211,  1  veyed  to  the  testator  in  fee  to  uses 
Dow,  249;  Tennant  v.  Tennant,  2  L,  to  bar  dowei".  Held,  that  the  heir-at- 
&  G.  51'J;  Schroder  V.Schroder, Kay,  law  of  the  testator  (his  eldest  son) 
578,  24  L.  J.  Ch.  (N.  S.)  510:  Hance  v.  was  not  bound  to  elect  between  tak- 
Truwhitt,  2  Joims.  &  Hem.  (Eng.)  216.  ing  such  freehold  property  as  heir, 
r.y  a  will  made  in  1832,  a  testator,  who  and  taking  the  benefits  given  to  him 
died  in  1835,  devised  certuin  freehold  by  the  will;  the  devise  of  the  free- 
property,  which  at  the  date  of  his  hold  property  having  been  revoked 
will  he  had  contracted  to  purchase,  by  the  form  of  the  1834  conveyance, 
to  his  three  sons,  and  directed  that,  Jacob  v.  Jacob,  78  Law  T.  (N.  S.)  825. 


§  733.]  DOCTRIXE    OF    EQUITABLE    ELECTION'.  1021 

erty  in  trust  for  the  testator's  heir,  Vi.\\(\.  sulsequenthj  the  testator 
jynrchased  lands,  it  was  held  that  the  heir  could  not  take  under 
the  will  and  also  claim  as  heir  the  after-acquired  lands.  He 
was  compelled  to  relinquish  the  benefit  under  tlie  will.^  It  has 
also  been  held  that  where  the  heir  is  given  a  legacy  or  a  de- 
vise by  the  will,  and  land  is  given  to  others  in  the  same  will, 
and  the  latter  disposition  of  land  is  void,  because,  for  example, 
it  violates  the  statute  against  perpetuities,  so  that  the  land  de- 
vised descends  to  the  heir,  he  will  be  compelled  to  elect  be- 
tween what  the  will  gives  him  and  what  he  takes  because  of 
intestacy.2 

§  733.  Party  taking  title  indirectly  not  put  to  liis  election 
by  a  gift  under  the  will. —  In  order  that  a  party  to  whom 
something  is  given  by  a  will  shall  be  put  to  an  election,  it  is 
necessary  that  the  testator  shall  give  him  a  benefit  hj  the  will  di- 
rectly and  not  derivatively?  An  illustration  of  this  occurs  where 
a  testator  by  his  will  gives  property  to  a  man  and  to  his  wife 
respectively,  and  the  wife,  being  also  an  heir  of  the  testator, 
elects  to  take  against  the  will.  She  must  then  surrender  what 
the  will  gives  her.  But  her  husband  is  entitled  to  his  curtesy 
in  the  property  which  she  tal'es  as  heir  against  the  will,  and  he 
may,  at  the  same  time,  take  the  legacy  the  will  gives  Jtini,  for 
the  reason  that  the  source  of  title  in  each  case  is  separate  and 
distinct.  ]\[oreover,  complete  compensation  having  once  been 
made  by  the  wife  *  when  she  elected  to  take  against  the  will, 
the  matter  is  at  an  end.'  So,  too,  one  of  several  heirs  or  next 
of  kin  of  the  testator  may  retain  what  descends  to  him  from  an- 
other heir  or  next  of  kin  of  the  testator,  though  he  has  given  up, 
on  his  election  to  take  under  the  will  of  the  testator,  what  he  was 
entitled  to  as  heir  of  the  testator."     So,  also,  and  for  the  rrason 

'McEIfmsli  V.  Schley,  2  Gill  (Md.,  sons  v.  Snook,   10  Hurl).  (N.  Y.)  Ml; 

\H\\),  Ibl,  I'JD,  200;   PliilH.l(ili)hia  v.  Bloomer  v.  Bloomer,  2  Ihii.l.  (N.  Y.) 

DaviH,  1  Whart.  (Pii.,  18:J0),  4'JO.    Con-  839. 

tra,  in  the  case  of  a  widow's  elortion,  '  ISfooro  v.  Baker,  1  Iiid.  (lH,"i;i),  1 15, 

liaiucH  V.  Corbin.  24  (ia.  185;  Gibbon  117;  Ik-nnett  v.  Harper,  30  W.  Vju 

V.  Gibbon,  -10  Ga.  (IHOU).  5(52;  Chapiii  51(S,  15  S.  E.  \i.  113. 

V.  Hill.  I  R  I.  (1810).  410.  <Cavan  v.  I'nlteney,  2  Ves.  Jr.  511, 

-Tlielln.swjn  v.  W(K)dford,  13  Ven.  555. 

209,  221;  Uhint  v.  Glitb.Tf>e  (1H05),  10  »CavaM  v.  PuUetiey,  2  Ves.  Jr.  511, 

VoH.  589,  593;  Ha\v!i-y  v.  JaiiicH,  10  551.  3  V.-s.  :!s  |. 

Wenil.  1,  01,  Ml;  Saiiford  v.  (Jooddl,  •'  Wilson  v.  Wilson,  1  Do  G.  \-  Sm. 

2«  N.  Y.  S.  129,  7  Misc.  R  334;  Per-  152;  llowells  v.  Jenkins,  2  J.,l.n.  &. 


1(122  LAW   OF   AVII.I.S.  [§  733a. 

that  he  takes  derivatively  and  not  directly,  A.,  who  takes  prop- 
erty as  a  legatee  under  the  will  of  B.,  is  not  estopped  from  also 
taking  a  legacy  under  the  will  of  C.  by  the  fact  that  C.  is  also  a 
leiratee  under  Ji.'s  \\i\[  and  has  elected  to  take  against  the  will. 
The  property  which  A.  takes  under  the  will  of  C,  though  it  was 
taken  by  C.  on  his  election  against  the  will  of  B.,  under  which 
A.  receives  a  legacy,  is  taken  by  A.,  derivatively  through  C,  and 
not  directly  from  B.  A.  need  not  in  receiving  his  legacy  under 
C/s  will  renounce  what  he  has  given  by  the  will  of  B.^ 

§  733a.  The  period  within  which  the  election  must  bo 
made. —  The  person  who  is  under  an  obligation  to  elect  must 
be  allowed  reasonable  time  and  opportunity  to  acquire  a  knowl- 
edge of  the  property  which  is  to  be  delivered  to  him  under  the 
provisions  of  the  will.  In  some  cases  he  must  also  be  per- 
mitted to  inform  himself  of  the  value  of  what  he  is  called  upon 
to  relinquish.  This  would  be  the  case  where  a  widow  has  to 
elect  between  a  legacy  of  a  definite  amount  and  her  dower 
in  real  property,  the  market  value  of  which  is  dillicult  to  esti- 
mate. The  person  who  has  to  elect  has  the  right  to  demand 
that  he  shall  have  an  opportunity  to  acquire  such  information 
as  will  enable  him  or  her  to  make  an  intelligent  election.  In 
England,  if  the  estate  is  in  a  complicated  condition,  he  may 
file  a  bill  in  equity  to  have  all  proper  accounts  taken  and  to 
have  other  equitable  relief  in  case  he  is  to  make  an  election 
which  is  irrevocable.  In  the  United  States  a  court  of  probate, 
at  least  in  the  absence  of  a  statute  requiring  an  election  to 
be  made  within  a  specified  period,  would  permit  a  reasonable 
delay  in  the  settlement  of  the  accounts  of  the  executor  for  the 
purpose  of  allowing  an  election.  The  person  is  allowed  a  rea- 
sonable time;  but  what  shall  constitute  a  reasonable  time  in 
any  particular  case  depends  upon  the  particular  circumstances 
of  that  case.-  In  particular  cases  a  devisee  has  been  allowed 
to  elect  after  the  lapse  of  a  period  of  many  years.'  But  where 
the  delay  of  the  party  to  elect  has  resulted  in  others  acquiring 

Hem.  706;  Cooper  v.  Cooper,  L.  R.  6  1  Ves.  Jr.  O^l;  Chalmers  v.  Storril, 

Ch.  App.  l.j,  21,  L,  R.  7  H.  L.  53,  79.  2  Ves.  &  Bea.  222;  Hentler  v.  Rose,  ?, 

1  Beem  v.  Kimberly,  73  Wis.  343. 39  P.  Wms.  12-J;  Wliistler  v.  Wliistler, 
N.  W.  R  542.              '  2  Ves.  Jr.  3G7,  371. 

2  Newman  v.  Newman,  1  Bro.  C.  C.  ^gopwitli  v.  Maugham,  30  Beav. 
186;  Wake  v.  Wake,  3  Bro.  C.  C.  255,  235;  Dillon  v.  Parker,  1  S\v.  381,  386. 


§§    To4,  735.]        DOCTEIXE    OF    EQUITABLE    ELECTIOX.  V^'l'd 

rights  because  of  his  apparent  acquiescence,  equity  wili  not 
permit  these  rights  to  be  prejudiced  by  the  subsequent  exercise 
of  the  rio-ht  of  election, 

§  734.  ^Vliethor  parol  evidence  is  receivable  to  show  an 
intention  to  reciiiire  election. —  In  a  few  of  the  early  cases 
evidence  of  the  testator's  declarations  was  received  for  the  pur- 
pose of  showing  that  he  believed  he  had  the  absolute  owner- 
ship of  the  property  which  he  devised,  and  that  by  devising 
property  as  his  own,  which  in  fact  belonged  to  another,  he  in- 
tended to  put  the  other  to  an  election.^  Later  cases  repudiate 
this  rule,  holding  that  the  int-^ntion  of  the  testator  to  dispose 
of  what  was  not  his  own  must  be  ascertained  solely  from  the 
will.-  But  the  rule  excluding  parol  evidence  is  applicable  only 
to  the  declarations  of  the  testator.  It  is  always  admissible  to 
prove  b}^  parol  the  circumstances  by  which  the  testator  was 
surrounded,  .the  condition  and  character  of  all  property  dis- 
posed of  in  the  will,  its  ownership,  and  the  relations  of  the  par- 
ties. 

§  735.  What  acts  constitute  an  election  to  take  under  the 
will. —  Xo  rule  exists,  except  so  far  as  the  widow's  election  is 
concerned,  which  requires  an  election  between  a  testamentary 
gift  and  an  inconsistent  claim  to  be  made  in  any  ])artlcular 
manner.  In  some  of  the  states  statutes  have  been  enacted 
which  require  that  a  widow's  election  to  take  a(j<ilnst  i/ic  icill 
shall  be  manifested  by  a  writing  signed  and  executed  by  her 
with  certain  formalities  and  with  a  lull  knowledge  of  her 
rights.  The  writing  thus  executed  must  be  lilcd  in  court,  ;md 
her  election  is  then  irrevocable. 

J3ut  in  the  absence  of  such  a  statute  an  electicm  to  take  under 

»  PwlU-noy  V.  Darlint'ton,  2  Ves.  Jr.  &  Bea.  187,192;  Kuttt-r  v.  Maclean, 

?5rj.'},  T).-)!,  r,.M.  4Vcs.  r):{7;  McLco.l  v.  Mel  )i.imcll,  (I 

'Milako  V.  nuiil.iirv.  1  Vcs.  Jr.  W:};  Ala.  (\M\),  TM\,  2:5!t;  I'hila.l.-lpliia  v. 

Clcniontson   v.   (Jaii-ly,    1    Kco.   ',W,);  Davis,    1    Wliart.   (l*a.)  AW;    TimlxM-- 

Lcakfj  V.   R'lridall.   1   Vin.  Al)r.  1H8;  lakci  v.  I'aiisli,  5  Dana  (.'i.")  Ky..  1n;{T), 

Smith  V.  Lync.  2  Y.  &  (J.  C.  :{|.*.;  D<k}  'MTr,   W.itcrs   v.   HowanI,    1   .Md.   C'li. 

V.  (Jliicliestor,  4  Dow,  7«,  H».  iM);  Alloii  (1HH5J,  112;  McKlfrcsli  v.  Schley.  2  (Jill 

V.  Andorwjn.  5  Hare.  10:{;  Stratlon  v.  (Md.),  IHl,  182,  llHI,  200;  Slioiinaii  v. 

B<»Ht,  1  Vcs.  Jr.  28.'»;  Tolo  v.  KonicrH,  Ix'wis,  A\  Minn.  107;  ('liapin  v.  Dill, 

0  VfH.  '.m.  :{22;  Druco  v,  Doninon,  «  1  U.  1.  1  Hi;  Maeey  v.  Shumate,  22  W. 

V«?s.  ;{8."».  402;  Ilin«-hclinrn  v.   Ilinch-  Va.    171;   Alkinson  v.  Sutton.  2:{  W. 

cliir.j.  .'J  V«!H.  nm;  Cmhh  V.  Crahh,   I  \'a.  107;  Miller  v.  .Sj.ringer,  70  Vvl  St. 

M.  &  K.  511 ;  Welhy  v.  Wei  by,  2  Ves.  2.'>3. 


1U2J: 


LAW    OF    AVILLS. 


or  ao-ainst  a  "v\'ill  mnv  be  manifested  in  ether  modes.  An  ex- 
press  and  positive  declaration  by  the  party  who  is  required  to 
elect,  to  the  effect  that  he  accepts  one  or  the  otlicr  of  the 
two  inconsistent  benefits,  is  usually  conclusive  of  an  intention 
to  elect.  So  the  fact  that  the  person  who  has  the  right  to  elect 
expresses  satisfaction,  orally  or  in  writing,  M'ith  the  provisions 
of  the  will  which  are  in  his  favor,  is  strong  evidence  of  his  in- 
tention to  abide  by  it.*  And  expressions  of  satisfaction,  coupled 
with  an  entry  upon  the  lands  devised;  or,  where  no  actual 
eutry  or  occupation  is  possible;  where  he  receives  and  enjoys 
the  rents  and  profits  of  the  land;  and  a  fortiori^  where  he  con- 
veys the  land  devised  to  him  to  another  by  sale  or  mortgage, 
may  raise  a  conclusive  presumption  that  he  has  elected  to  take 
under  the  will.  Havino^  o;one  so  far  in  assertino^  his  claim  to 
the  estate  which  the  will  gave  him,  he  cannot  be  heard  to  ob- 
ject to  its  provisions;  for,  by  taking  title  under  the  will,  he  has 
recognized  the  force  and  validity  of  its  provisions  for  all  pur- 
poses, and  is  estopped  to  assert  that  it  is  inoperative  as  regards 
the  claims  of  others.^ 


1  Craig  V.  Walthall,  14  Gratt.  (Va., 
1858;,  518,  525. 

2  Reeves  v.   Garrett,  3-4  Ala.  563; 
Clark  V.  Hershey,  52  Ark.  (1889),  473, 

13  S.  W.  R.  1077;  Burroughs  v.  De 
Gouts,  70  Gal.  371,  11  Pac.  R.  734; 
Bennett  v.  Packer,  39  AtL  R.  739, 
741  (Conn.,  1898);  Sliivers  v.  Goar,  40 
Ga,  676;  Sewell  v.  Smith,  52  Ga, 
(1874),  567;  Vanzant  v.  Bigham,  76 
Ga,  (1886),  759;  King  v.  Skellie,  94 
Ga.  147,  3  S.  E.  R.  614;  In  re  Smith, 
108  Cal.  116,  40  Pac.  R.  1037;  Fry  v. 
Morrison,  159  III.  254,  42  N.  E.  R.  774; 
Davis  V,  Hoover,  112  Ind,  (1887),  423, 

14  N,  E.  R.  468:  Larkin  v.  Mc:\ranus, 
81  Iowa,  724,  726;  Richart  v,  Richart, 
30  Iowa,  465;  Stoddard  v,  Cutcompt, 
41  Iowa.  329;  Herr  v.  Herr,  90  Iowa, 
.538,  58  N.  W.  R.  897;  Reppert  v.  Pel- 
lizzarro,  83  Iowa,  497,  500,  50  N.  W. 
R  19;  Craig  v,  Conover,  80  Iowa,  353, 
355;  In  re  Franke's  Estate,  97  Iowa, 
704,  66  N.  W.  R.  918;  Gore  v.  Stevens, 
1  Dana  (31  Ky.,  1833),  201,  204;  Grider 
V.  Eubanks,  13  Bush  (75  Ky.,  1877), 


510;  Smart  v.  Easley,  5  J.  J.  ]\Iarsh, 
(28  Ky.,  1830),  215;  Smith  v.  Bone,  7 
Bush  (Ky.,  1870),  367:  Weeks  v.  Pat- 
ten, 18  Me.  (1841),  42;  Sanders  v,  San- 
ders, 22  Miss.  81,  87  (1850);  Macknett 
V.  Macknett,  29  N.  J.  Eq.  54;  Jones 
V,  Powell,  6  Johns.  Ch.  (N.  Y.)  194, 
199;  Thompson  v.  Hook,  6  Oliio  St. 
480;  Fulton  v.  Moore,  25  Pa.  St.  368; 
Bradfords  v.  Kent,  43  Pa.  St.  474; 
Cox  V.  Rogers.  77  Pa,  St.  160;  Chace 
V,  Gregg,  88  Tex.  552,  32  S.  W.  R.  520; 
Waterbury  v,  Netherland,  6  Heisk. 
(Tenn.)  512;   Hatch's  Estate,  60  Vt. 
160,  18  AtL  R.  814;  Craig  v.  Walt- 
hall, 14  Gratt.  (Va.)  518,  525;  Beem  v. 
Kimberly,  72  Wis.  343,  39  N.  W,  R. 
542.    See  also  Wake  v.  Wake,  1  Ves. 
Jr.  335,  3  Bro.  C.  C.  255;  Pad  bury  v. 
Clarke,  2  Macn.  &  G.  298,  300,  307 
Dillon  V.  Parker,  1  Sw.  359,  380,  387 
Spread  v.  Morgan,  1 1  H.  L.  Gas.  588 
Sopwith  V.  Maugham,  30  Beav.  235 
Dewar  v.  Maitland,  L.  R  2  Eq.  834 
Campbell  v.  Ingilby,  21  Beav.  583 
Tibbitts  V.  Tibbitts,  19  Ves,  603.    Tes 


§  735.] 


DOCTRINE    OF    EQUITABLE    ELECTION. 


1025 


The  legal  presumption  is  that  a  widow  knew,  if  she  accepted 
a  legacy,  she  would  be  barred  from  claiming  against  the  will. 
Whether  the  facts  as  proved  constitute  an  election  is  always 
a  question  of  law  to  be  determined  by  the  court.^ 

It  cannot,  as  matter  of  law,  be  said  that  the  fact  that  the 
person  who  has  the  right  to  elect  accepts  the  office  of  executor 
under  the  will,  performs  the  duty  of  that  office  and  receives 
proper  compensation  therefor,  or  even  a  specific  legacy  for 
his  trouble,  which  would  be  remuneration  for  services  and  not 
bounty,  constitutes  an  election  on  his  part  to  take  under  the 
will.  Thus,  in  Massachusetts  it  was  iield  that  the  mere  receipt 
of  compensation  by  a  husband,  who  was  his  wife's  executor, 
did  not  constitute  an  election  by  him  to  abide  by  his  wife's  will 
which  gave  him  no  property .- 

The  contrary  has  been  held  where  a  husband  wrote  his  wife's 
will,  qualified  and  act"d  as  executor  under  it,  paid  debts  and 
legacies,  filed  his  accounts  and  received  his  compensation  as 
the  executor.  He  was  held  to  have  elected  to  take  under  the 
Avill.     But  in  each  case  he  had  paid  to  himself,  as  legatee,  the 


tator's  widow,  who  was  given  a  life 
estate  in  realty  and  specific  personal 
chattels  by  the  will,  with  a  direc- 
tion that  she  would  convey  her  own 
realty  to  testator's  son,  did  not,  by 
entering  into  iK)ssession  of  such  realty 
and  chattels,  elect  to  take  them  and 
convey  her  own  estate,  where  she 
also  kept  the  latter,  and  no  aflirrn- 
ative  action  was  had  to  compel  her 
tf)  B()  elect  Shanley  v.  Shan  ley,  rA 
N.  Y.  S.  65;}.  An  election  to  take 
land,  either  for  or  against  the  will, 
is  shown  by  mortgaging  or  selling  it. 
I'ratt  V.  Felton,  4  Cush.  (Maas.)  474; 
lifirden  v.  Ward  (S.  C,  188'J),  9  S.  K. 
li.  liOO;  Rogers  v.  Jones.  L.  R  3  Ch. 
])iv.  688.  If  a  wifo  acci-pts  a  legacy 
Hho  will  \a}  barnrd  of  dower  after 
enjoying  the  K;iiiie  for  a  year  an<l  ac- 
f{uies('irig  in  th«;  sah-  of  land  in  which 
she  wiiH  dowal)hi.  Jones  v.  I'owell,  6 
Jr.hn.H.  Ch.  (.N.  Y.)  l»l.  VM. 

>  Klton  V.  MrH)ro,  i;r»  I 'a.  St.  .'JJW.     A 
widow  who   h;is   accoptod   perHUUul 
0.-) 


property  bequeathed  to  her,  and  has 
also  received  from  the  executor  the 
rents  of  land  given  her  in  lieu  of 
dower,  will  prima  facie  be  presumed 
to  have  consented  to  take  under  the 
will,  and  the  burden  of  proof  is  tlien 
on  her  to  show  that  she  had  not  niado 
Jin  election  or  renounced  her  dower. 
Hill  V.  Hill  (N.  J.  Eq.,  18{»8).  41  Atl.  \L 
943.  A  legatee's  recognition  of  tlie 
executor  nameil  in  ti>o  will  by  exe- 
cuting an  order  on  the  executor  t<> 
pay  a  third  [K^rson  a  siwcifled  sum, 
where  tlie  legatee  herself  received 
nothing  therefrom,  and  the  money 
was  paid  from  a  fund  undisiK>sed  of 
by  tlie  t«fstatt)r.  does  not  ct)nstituto 
an  election  to  take  umier  tiio  will, 
so  as  to  estop  the  legal e(*  from  de- 
nying its  provisions,  where  such  act 
causeil  no  injury  to  the  other  legatee. 
I'ryor  v.  Pendleton  ;Tex.,  18U8).  47  S. 
W.  R  706. 

-'Tyler  v.  Wheeler,  160  Mass.  206, 
:!.'.  \.  I'.,  i:  666. 


lieu  LAW  OF  WILLS.  [§§  730,  737. 

sums  of  nionoy  which  the  testator  had  bequeathed  to  hhn.^  On 
the  other  liand,  the  fact  that  the  widow  qualifies  as  the  exec- 
utrix of  her  kite  husband,  takes  possession  of  the  land  and  sells 
under  a  power  of  sale  conferred  upon  her  as  executrix,  does 
not  show  an  intention  upon  her  part  to  take  under  the  will,  as 
she  acts  solely  as  an  executrix  and  not  for  herself  individually? 
But  where  the  widow,  having  been  appointed  executrix,  in  her 
account  as  such  took  credit  for  a  balance  of  personal  property 
retained  hy  the  executrix  according  to  the  icill^  it  was  held  that 
she  had  elected  to  take  under  the  will." 

§  736.  Not  material  that  the  testator  supposed  he  owns 
the  property  devised. —  It  is  not  material,  in  determining 
whether  a  party  is  put  to  an  election,  that  the  testator,  in  dis- 
posing of  that  pei-son's  property,  was  in  error  as  to  its  owner- 
ship, or  that  the  testator  in  fact  knew  that  he  had  no  title  to 
it.  In  either  case  if  the  party  whose  property  is  given  away 
decides  to  take  against  the  will,  he  must  relinquish  his  legacy 
under  the  will.  AVhile  the  presumption  is  that  a  testator  in- 
tends to  give  only  his  own  property,  his  actual  knowledge  of 
his  title  or  lack  of  title  is  usually  unascertainable;  and  Avhere 
accurate  knowledge  is  impossible,  speculation  and  conjecture 
are  useless ;  "  for,"  as  was  said  by  an  eminent  equity  authority, 
"  nothing  can  be  more  dangerous  than  to  speculate  upon  what 
he  would  have  done  had  he  known  one  thing  or  another."* 
The  assertion  of  title  by  A.,  under  a  deed  from  B.,  conveying 
to  A.  land  which  both  believed  belonged  to  F.  by  inheritance  from 
C,  being  ignorant  of  the  fact  that  C.  had,  by  will,  devised  it 
to  A.  as  a  separate  estate  (the  will  not  having  been  discovered 
and  admitted  to  probate  till  after  the  death  of  B.),  does  not 
estop  A.  from  claiming  the  property  under  the  will  of  C.^ 

§  737.  Election  by  infaiils  and  iutompetent  persons. —  An 
infant,  though  he  has  a  right,  has  no  capacity  to  elect.®     Nor 

1  Coe's  Appeal,  64  Conn.  352,  30  Atl.  ^  Rasbeny  v.  Harville  (Ga.),  16  S.  E. 
R  140;  SchoU's  Appeal  (Pa.,  1889),  17  R.  299.  See  also  Whistler  v.  AVebster, 
AtL  R.  206.  2  Ve&  Jr.  367,  370;  Welby  v.  Welby, 

2  Procter's  Estate,  103  Iowa.  232.237.  2  Ves.  &  Bea.  190,  199;  Whitley  v. 

3  Fulton  V.  Moore.  £o  Pa.  St.  368.         Whitley.  31  Bea  v.  173;  Coutts  v.  Ack- 
<By  Sir  R.  P.  Arden,  in  Whistler  v.     worth,  L.  R.  9  Eq.  519;  Boscawen  v. 

Webster.   2  Ves.   Jr.   370.     See  also  Scott,  L.  R.  26  Ch.  Div.  358. 

Thelluson  v.  Woodford,  13  Ves.  221;  «Hamblett  v.  Hamblett,  6  N.  H. 

Gore  V.  Stevens,  1  Dana  (Ky.).  201,  (1832).  333;   Robertson  v.  Stevens.  1 

204;  Weeks  v.  Weeks,  77  X.  C.  421, 424.  Ired.  (30  N.  C,  1841 1,  Eq.  247,  251 ;  Me- 


§  737.]  DOCTRINE    OF   EQUITABLE    ELECTION.  l027 

can  his  guardian  elect  for  him,  unless  permitted  to  do  so  by  a 
decree  or  order  of  a  court  having  jurisdiction,  which  will  be 
granted  only  upon  proof  of  the  facts  showing  a  necessity  that 
an  election  shall  be  made  in  this  manner.' 

An  insane  person  or  an  habitual  drunkard  is  incapable  of 
electing,  nor  can  his  committee  or  guardian  act  for  him  in  this 
respect,  for  the  exercise  of  this  right  involves  the  exercise  of  a 
discretion  which  is  beyond  the  general  powers  of  the  committee. 
When,  however,  it  becomes  necessary  that  a  person  who  has  not 
capacity  to  elect  shall  have  an  election  made  for  him,  a  court 
of  probate  or  a  court  of  equity  will,  upon  the  presentation  of 
a  petition  and  proper  proof  of  the  essential  facts,  order  a  refer- 
ence for  the  purpose  of  ascertaining  if  a  necessity  for  an  elec- 
tion exists;  and  also  to  determine  how  it  shall  be  made  so  that 
it  shall  result  most  advantageousl}^  for  the  incompetent  person. 
7 laving  been  placed  in  full  possession  of  the  facts,  the  court 
will  by  its  officers  elect  for  the  person  entitled.-  The  same  rule 
would  be  applied  to  the  case  of  a  lunatic  or  habitual  drunkard 
under  the  charge  of  a  committee.' 

In  equity  a  married  woman  has  always  possessed  capacity 
to  elect,  and  when  she  has  made  an  intelligent  election  with  a 
full  understanding  of  her  rights  and  of  the  value  of  the  prop- 
erty involved,  a  court  of  equity  will  direct  a  pro}  or  conveyance 
to  be  made  by  her.  If  there  is  any  doubt  as  to  the  circum- 
stances of  tlie  election,  or  if  the  facts  show  that  she  is  not  in  a 
position  to  make  a  free  and  intelligent  choice,  or  one  which 
will  be  for  her  best  interests,  a  court  of  equity  ought  to  oriU'r 
a  reference  to  ascertain  wliat  will  be  most  benelicial  for  hoi-, 

Queen  v.  McQueen.  2  Jones'  Eq.  CS.  liowie,  2  Bland  Ch.  (M.l.)  COO,  C2:i; 

C.)  1(5;  Tiernan  V.  litjwlaud,  15  Pa.  St.  Kli|)i)jn   v.  Hanner,   3  Jones  (N.   C, 

429.  lM.j(5).  E(i.  450:    ClietwynJ  v.   Fleet- 

iBassett  v.  Durfee.  87  Mich.  ICT.  I!)  wood,  1  Hro.  1'.  C.  ;J00;  (nH)dwyn  v. 

N.  W.  R.  55S;  Huston  V.  M((;uii«'.  ',' I  (Joodwyii,    1    Ves.    2:.'S:     15i>;land    v. 

OhioSt.  11;  Tonilin   v.  Jaync.   11  I?,  lluddlcstoiic,:}  Itro.  ('.  C.  2H:>.  n.;  Cret- 

Mon.  (Ky.)  WS.';   Addison   v    liowif.  i  ton  v.  Ilawanl,  1  Swanslon.  lOK,  •li:t; 

Uland  Ch.  (.Md.)  WJ<».  «-':{;  M<Qu<m-ii  v.  KhriiiKton  v.  KhriiiKlon,  5  Madd.  117; 

McQiH'<ii.  »' Jones"  F>|.  (55  N.C,  1H51),  Hrown  v.   Hrowu,   L.   ]l  2   Kq.    jsi; 

16;  Orettan  V.  Ilaward.  ISw.  109,  4i:{.  (iri^Ks  v.  (iilwni,   L.   U.   1   Kq.   (555; 

2  Andrews  v.  liiuwett,  92  .Mich.  419.  Hlunt  v.  Ijuk.  2(J  L.  J.  Ch.  MH. 

52  N.  W.  K.  74:j;  Weeks  v.  Weeks,  77  ^  In  re  Marriott,  2  .Moll.  51(1;  Ken- 

N.  C.  421.   424:    Van  Stcenwyck    v.  nedy    v.    Johnson,    05    I'a.    Si.  45l; 

Washburn,  59  Wis.  W.i;  Addi.s<jn  v.  Youn^  v.  IJoarduian,  97  M...  IMl, 


102S  LAW  OF  WILLS.  [§§  738,  730. 

and  she  "will  be  decreed  to  elect  accordingly.'  The  femme 
coverte  having  made  an  intelligent  election  is  bound  thereby  in 
the  absence  of  fraud  or  mistake,  and  cannot  subsequently  re- 
nounce the  property  she  luis  taken. - 

§  738.  The  doctrine  of  election  in  relation  to  the  claims 
of  creditors. —  A  case  foran  election  did  not  arise  when,  prior 
to  the  passage  of  the  statute  making  real  property  assets  for 
the  payment  'of  the  simple  contract  debts  of  the  testator,  the 
testator  devised  lands  for  the  payment  of  his  simple  contract 
debts  and  bequeathed  his  personal  property  to  others.  The 
creditor  was  not  compelled  to  elect  between  the  land  which 
had  been  devised  for  the  purpose  of  paying  his  claim  and  the 
personal  property,  which  by  the  law  was  also  assets  in  the 
hands  of  the  executor  for  that  purpose.  lie  might  exhaust  the 
land  thus  devised  and  then  have  any  deficiency  made  up  out 
of  the  personal  property  bequeathed.' 

§  739.  Election  between  gifts  by  the  same  will. —  The  doc- 
trine of  election,  as  the  term  is  used  in  equity,  has  relation  to  a 
choice  between  a  gift  under  the  will  and  a  claim  against  it. 
The  term  may  sometimes  be  used  in  a  restricted  sense,  as  indi- 
cating a  choice  between  two  legacies  given  to  one  person  by 
the  same  will.  In  this  latter  case  the  property  is  owned  wholly 
by  the  testator.  In  giving  two  gifts  he  may  express  his  inten- 
tion that  the  legatee  shall  not  have  both,  but  shall  select.  Thus 
a  testator  may,  in  giving  property  by  his  will,  direct  that  the 
legatee  shall  be  permitted  to  choose  in  what  form  or  character 
he  may  take  it.*    And  generally,  where  several  pieces  of  prop- 

1  Robertson  V.  Stephens,  1  Ired.  Eq.  Quead's  Trusts,  W.  N.  1885,  p.  99; 
(N.  C.)  247,  251;  Pultenej-  v.  Darling-  Frank  v.  Frank,  3  My.  &  Cr.  171.  See 
ton,  7  Bro.  P.  C.  546,  547;  Vane  v.  as  to  the  power  of  a  married  woman 
Lord  Dungannon,  2  Sch.  &  Lef.  118,  to  relinquish  a  reversionary  riglit  in 
133;  Davis  V.  Page,  9  Ves.  350;  Cooper  action,  Whittle  v.  Henning,  2  Phil. 
V.  Cooper,  7  H.  L.  Cases,  53,  67.  79,  L.  731;  Robinson  v.  Wheelwright,  6  De 
R.  6  Ch.  App.  15,  21 ;  Wilson  v.  Town-  Gex,  Mac.  &  G.  535,  546:  Williams  v. 
shend,  2  Ves.  Jr.  693,  697;  Porsons  v.  Mayne,  1  Irish  R.  Eq.  519;  Robertson 
Dunne,  2  Ves.  60;  Robinson  v.  Buck,  v.  Stephens,  1  Ired.  Eq.  (N,  C.)  247, 
71  Pa.  St  386.  251 ;  Tiernan  v.  Roland,  15  Pa.  St.  430, 

2  Ardesoife  v.  Bennet,  2  Dick.  463;  432. 

Wilder  v.  Piggott,L.  R  22  Ch.  D.  263:  3 Kidney  v.   Cous'=;maker,   12  Ves. 

Barrow  v.  Barrow,  4  Kay  &  J.  409,  18  136;  Clark  v.  Guise,  2  Ves.  Sr.  617. 

Beav.  529;  Sisson  v.  Giles,  11  W.  R.  4  Baum  v.  Bowen  (S.  C,  1898),  31  S, 

558,  32  L.  J.  (N.  S.)  COO;   Smith  v.  E.  R  338;  Ridgway  v.  Manifold,  39 

Lucas,   L.  R  18  Ch.  D.  531;    In  re  lud.  58,  63. 


§  740.]  DOCTKIXE    OF    EQUITABLE    ELECTION.  1029 

erty  are  given  to  a  legatee,  some  of  "which  are  incumbered 
while  others  are  not,  he  is  at  liberty  to  elect  between  them,  and 
to  reject  that  which  is  incumbered  while  accepting  that  which 
is  beneficial.  Thus,  for  example,  in  the  case  of  a  legacy,  and 
also  a  gift  of  shares  in  a  company  which  failed  after  the  death 
of  the  testator,  and  the  shareholders  were  called  upon  to  con- 
tribute, a  legatee  of  the  shares  may  relinquish  his  legacy  of 
shares  and  retain  that  of  money.^  But  in  this  case  as  in  all 
others  the  intention  of  the  testator  must  control,  and  if  it  ap- 
pears plainly  that  he  meant  the  legatee  to  take  the  burden- 
some with  the  beneficial  legacy  he  must  take  both  or  relinquish 
both.2 

§  740.  Election  in  the  case  of  a  will  devising  land  in  dif- 
ferent states. —  A  case  for  an  election  by  the  heir  under  a  will 
which  is  in  part  inoperative  may  arise  under  the  following  cir- 
cumstances: The  testator  owning  lands  which  are  located  in 
two  or  more  states  or  countries  makes  a  will  devising  his  lands 
away  from  his  heir  and  also  giving  the  heir  a  benefit;  and  the 
will  is  valid  according  to  the  laws  of  one  state  so  that  the  heir 
receives  his  legacy,  but  it  is  invalid  according  to  the  laws  of 
another  state  in  which  the  land  is  located,  in  consequence  of 
which  invalidity  the  land  which  was  attempted  to  be  devised 
away  from  the  heir  descends  to  him.  The  question  is  discussed 
by  the  English  authorities  from  the  standpoint  of  a  will  validly 
executed  to  pass  land  according  to  the  formalities  of  the  Eng- 
lish statutes  which  attempts  to  disposed  of  land  located  in  Scot- 
land, but  which  is  inojierative  to  pass  that  land  because  not 
i'xecuted  with  tlie  formalities  required  in  the  latter  country. 
In  the  United  States  the  question  would  arise  when  a  will,  for 
example,  executed  in  New  York,  with  an  attestation  by  two 

'TaUwt  V.  Lonl  ItadiU'r,  3  My.  &  receive  a  portion  of  the  land  given 

K.  2.")2,  251;  WarnMi  v.  Kudall.  1  Jo.  to  tlie  other  two  dauj^liters.     It  was 

&  Hem.  1,  i:};  Gre»5n  v.  Britten,  42  liehl  that  tlio  two  duuKliters  wlio  liad 

L.   J.   Ch.    187;    Amlrew   v.   Trinity  heen    dirt'cteti    to    pay  the    money 

Hall,  9  Ves.  52");  Kairciout;!!  v.  John-  KJiouId  elect  between  doing  bo  and 

Htone,  10  Ir.  Ch.  4-12;  .Aston  v.  \V<m)c1,  Hiirrciidering  a  portion  of  the  land 

22  W.  R  H!t:j,  Syer  V.  (Jladston.'.  L.  11.  to  th<>   third  (ImiK'lit.'r.     Diuiuith   v. 

:50  Ch.  I).  01 1.   T.->tator  .l.'vmed  lands  L.'e,  51  N.  Y.  S.  (ilS.  21)  A|>p.  Div.  20; 

to  hix  two  daughters  with  the  ilirec-  Molfi-tt  v.  Hati-H,  11  Sni.  it  Cif.  4nH. 

tion  that  tli'-y  should  pay  ^t.OOO  to  a  H'alhot  v.  Karl  of  Itjidnor,  :i  My.  it 

third  dauglitcr,  arxl  if  th<'y  did  not  K.  252,  254;  Story,  Vai  .lur.,  Jj  lOUl. 
jmy  this,  the  third  daughter  wiik  to 


1030  LAW   OF  WILLS.  [§  740. 

"witnesses,  wliich  is  valid  to  pass  land  located  there,  purports  to 
devise  land  located  in  anotlier  state  or  comnionwealtli  where 
three  or  more  witnesses  are  required  for  a  devise. 

In  determining  the  question  whether  the  heir  of  the  testator 
must  be  compelled  to  elect  between  what  the  partially  invalid 
will  gives  him  and  what  he  takes  by  reason  of  the  fact  that  it 
is  in  part  invalid,  and  the  testator  to  that  extent  intestate,  it 
must  in  the  first  place  be  determined  whether  the  testator 
meant  the  Avill  to  dispose  of  all  his  land,  wherever  it  may  be 
located,  or  w^hether  he  meant  to  dispose  of  only  his  land  or 
other  property  which  is  situated  in  the  state  or  country  in  con- 
formity with  whose  testamentary  law  the  will  is  operative.  In 
the  former  case,  as  wdiere,  for  example,  the  testator  devises 
"  all  my  land  or  my  real  property^  of  whatever  sort  and  wherever 
located^''  the  intention  of  the  testator  to  dispose  of  all  his  land 
is  so  clearly  apparent  that  the  heir  is  put  to  an  election.  He 
must  then  elect  between  what  the  will  gives  him  so  far  as  it  is 
valid,  and  what  he  takes  by  descent  so  far  as  the  wull  is  inop- 
erative. If  the  heir  receives  a  legacy  under  a  will  which  is 
valid  to  pass  property  in  one  state,  he  cannot  claim  to  defeat 
its  operation  upon  land  located  in  another  state  by  proving 
that  it  is  not  executed  in  conformity  to  the  laws  of  the  latter 
state.  lie  cannot  take  land  by  descent  because  the  will  is  im- 
properly executed  according  to  the  law  of  the  state  in  which 
the  land  is  located.^ 

But  the  English  cases  have,  in  construing  English  wills  which 
purport  to  dispose  of  lands  in  Scotland,  reversed  this  presump- 
tion. If  the  will  purports  to  dispose  of  the  land  of  the  testator 
"o/"  whatsoever  nature  and  wheresoever  located^''  the  Scottish 
heir  will  not  be  put  to  his  election,  for  it  will  be  presumed  that 
the  testator  meant  to  include  only  such  property  wherever  lo- 
cated as  the  will  would  operate  upon.^  ( )n  the  other  hand, 
where  the  testator  disposes  of  his  lands  by  some  particular  des- 
ignation describing  their  locality,  as  by  stating  that  they  are 
located  in  Scotland,^  or  devises  his  lands  "  in  any  part  of  the 

^In  re  Cumming's  Estate,  25  Atl.  Maxwell  v.  Maxwell,  16  Beav.   102, 

R  1125,  153  Pa.  St.  377  (1893),  22  W.  106. 

N.  C.  172.  3Brodie  v.  Barry,  2  Ves.  &  B.  127; 

2  Johnson  v.  Telford,  1  R  &  My.  Reynolds  v.  Torin,  1  Russ.  129;  Mo 

244;  Allen  v.  Anderson,  5  Hare,  163;  Call  v.  McCall,  1  Dra  283. 


§  740.] 


DOCTRINE    OF    EQUITABLE    ELECTION. 


1031 


United  Kingdom,"  the  person  Avho  will  take  the  Scotch  lands 
as  heir  because  the  will  is  improperly  executed  must  elect  be- 
tween them  and  a  legacy  given  him  by  the  same  will.^ 


1  In  the  case  of  Van  Dyke's  Ap- 
peal, 60  Pa.  St  489,  a  testator  be- 
queathed to  his  two  daughters  lega- 
cies which  exhausted  his  estate  lo- 
cated in  Pennsylvania  and  devised 
to  his  two  sons  all  his  New  Jersey 
lands.  Tne  will,  being  executed  in 
the  former  state,  was  valid  by  the 
laws  of  that  state,  but  invalid  to  pass 
the  lands  located  in  New  Jersey.  The 
daughters  were  put  to  an  election 
between  their  legacies  and  the  shares 
whicli  they  would  take  as  heirs  in 
the  New  Jersey  pi'operty.  And  the 
court  ordered  that  the  daughters 
should  pay  out  of  the  personal  prop- 
erty they  received  under  the  will  a 
sum  equal  in  value  to  what  thej^ 
would  take  as  heiresses  of  the  testa- 
tor in  the  New  Jersey  lands.  In  this 
case  there  was  an  express  direction 
that  the  heirs  of  the  testator  should 
take  no  exception  to  the  will,  but  the 
court  disregarded  this  in  reaching 
its  decision,  and  placed  its  ruling 
upon  the  broad  ground  tliat  a  condi- 
tion .slumld  in  such  cases  U;  implied. 
The  court,  by  Judge  Sharswood.  said : 
"It  may  certainly  be  considered  as 
settled  in  England,  tiiat  if  a  will  pur- 
porting to  devise  real  estate,  but  in- 
♦-fFectually,  becau.se  not  attested  ac- 
cording to  the  statute  of  frauds, 
gives  a  leguc-y  to  the  heir  at  law.  he 
cannot  Ix- put  to  his  election.  (Ilearle 
V.  (jroenbank,  ',i  Atk.  iVJ')-,  Tlu-lluson 
V.  \V(X)dford.  i:j  V.'s.  '2m;  Hucke- 
ridge  v.  Ingram.  2  id.  <l.V.*;  Slieddon 
V.  (;<K>drich.  H  id.  4H'2.)  Tlu-se  <'aseK 
have  Ix-en  rtn-ogni/.ed  and  followed 
in  tliis  countrj'.  (Mcldior  v.  Hurg<T, 
1  Dev.  &  Halt.  «:{»;  .McKlfr.sli  v, 
H<;hley,  2  (iill,  IHl ;  Jones  v.  Jones.  H 
(fill.  1U7;  Kearney  v.  Mm-onib,  1  ('.  K. 
Orwin,  1H9.)  Yet  it  in  eijually  well 
settled  that  if  the  tesUitor  annexed 


an  express  condition  to  the  bequest 
of  the  personalty,  the  duty  of  elec- 
tion will  be  enforced.  (Boughton  v. 
Bougliton,  2  Ves.  Sr.  12;  Whistler  v. 
Webster.  2  Ves.  367:  Ker  v.  Wau- 
choi>e.  1  Bligh.  1 ;  McElf resh  v.  Schley, 
2  Gill,  181.)  That  this  distinction  rests 
ujjou  no  sufficient  reason  has  been  ad- 
mitted by  almost  every  judge  before 
whom  the  question  has  arisen.  Why 
an  express  condition  should  prevail, 
and  one  however  clearly  implied 
should  not,  has  never  been  and  can- 
not satisfactorily  be  explained.  It 
has  been  said  that  a  disposition  abso- 
lutely void  is  no  disposition  at  all, 
and.  being  incapable  of  effect  as  such, 
it  cannot  be  read  to  ascertain  the  in- 
tent of  the  testator.  But  an  express 
condition  annexed  to  the  bequest  of 
the  personalty  does  not  render  the 
disposition  of  the  realty  valid.  It 
would  be  a  repeal  of  the  statute  of 
frauds  to  hold  so.  How,  then,  can  it 
operate,  any  more  than  an  implied 
condition,  to  open  the  eyes  of  the 
court,  so  as  to  enable  them  to  read 
those  parts  of  tlie  will  which  relate 
to  the  realty:  and  witiiout  a  knowl- 
edge of  what  they  are,  huw  can  the 
condition  be  enforced?  .  .  .  We 
are  e(iually  clear  that  this  is  a  case 
of  election.  The  intention  of  the  tes- 
tator does  not  rest  merely  upon  the 
implic.'itifin  arising  from  the  careful 
division  of  his  projterty  among  his 
children  in  «'(iual  classes,  but  he  Ims 
indicat«'il  it  in  words  by  the  clause: 
•I  direct  and  enjoin  my  heirs  that  no 
exception  Im'  taken  to  this  will,  or 
any  part  thereof,  on  any  legal  or 
teciinical  a<-coutit.'  It  is  true  that, 
for  want  of  u  lpi'i|iiest  over,  tliis  prt)- 
vision  would  lie  regarded  as  iiitri- 
rt»rim  only,  ami  would  not  indiice  ii 
forfeiture.     .     .     .     But  the  (hnt  riiio 


1032  LAW    OF    AVILLS,  [§  741. 

§  741.  Cases  of  election  uiuler  powers  of  appointment.— 

A  case  for  an  election  arises  where  the  testator,  having  an  ex- 
clusive power  to  appoint  by  will,  to  be  exercised  only  in  favor 
ofjHuilciiIar  ohjects,  exercises  it  in  favor  of  a  stranger  to  the 
power,  and  in  the  same  will  gives  property  absolutchj  his  own 
to  the  ohject  of  the  power.  The  appointment  to  the  stranger 
being  in  excess  of  the  power  is  invalid,  and  it  will  be  set  aside 
by  equity  in  favor  of  those  who  would  take  by  default  on  a 
total  failure  to  appoint.  If,  then,  the  testator  in  a  will  which 
attempts  an  illegal  execution  of  the  power  gives  property  of  his 
own  to  those  who  take  in  default  of  a  valid  appointment,  who, 
in  the  case  of  an  exclusive  power,  are  the  objects  of  the  power, 
such  persons  must  elect.  They  cannot  take  the  property  owned 
by  the  testator  and  which  he  has  given  them  in  the  will,  and 
also  take  by  default  of  appointment  against  the  will.^ 

But  in  order  to  create  a  case  for  an  election  it  is  always  ab- 
solutely necessary  that  the  testator  should  give  property  of  his 
own  to  the  disappointed  objects  of  the  power;  for,  if  this  be 
not  done,  there  is  nothing  for  them  to  elect  between.  Thus 
an  election  is  not  required  to  be  made  between  two  appoint- 
ments by  will  made  under  limited  powers  disposing  of  separate 
funds,  for  under  such  circumstances  the  testator,  in  appointing, 
ha^  disposed  of  no  property  absolutely  his  own.  Hence  where  a 
person  has  one  poAver  to  devise  one  fund  to  one  or  more  of  his 
children,  and  a  separate  and  distinct  power  to  divide  another 
fund  by  his  will  among  all  his  children,  and  he  validly  executed 
the  former  power  by  giving  all  to  one  child,  A.,  but  gave  the 
fund  embraced  in  the  second  power  (which  he  should  have 
divided  among  all  his  children)  to  two  of  them,  it  was  held 
that  A.,  while  retaining  what  had  been  devised  to  him  in  exe- 

of  election  rests  upon  the  principle  of  63;  Tomkyns  v.  Blane,  28  Beav.  422, 
compensation,  and  not  of  forfeiture,  423;  Reid  v.  Reid,  25  Beav.  469;  Ex 
%vliicb  applies  only  to  the  non-per-  parte  Barnard,  6  Ir.  Ch.  R.  135;  In  re 
formance  of  an  express  condition.  Fowler's  Trusts,  27  Beav.  362;  Arm- 
Besides,  no  decree  of  this  court  could  strong  v.  Lynn,  6  Ir.  R  Eq.  186. 
authorize  the  guardians  of  the  minors  "Thus  where  a  person  has  a  power 
to  execute  releases  of  their  rights  to  appoint  to  two,  and  he  appoints 
and  titles  to  the  New  Jersey  lands  to  one,  and  gives  the  other  a  legacy, 
which  would  be  effectual  in  that  tliat  is  a  case  of  election."  Sugden 
state."  on  Powers,  589  (8th  ed.);  Bristowe  v. 

1  Whistler  v.  "Webster,  2  Ves.  367,  Ward,  2  Ves.  Jr.  336. 
370;  England  v.  La  vers,  L.  R.  3  Eq. 


§  742.]  DOCTRINE   OF    EQUITABLE    ELECTION.  1033 

cution  of  the  former  power,  could  also  take  a  share  under  the 
second  power  as  in  default  of  an  appointment.^  So,  too,  in 
order  that  an  election  may  be  required,  it  is  necessary  that  the 
testator  should  dispose  of  another's  property.  An  attempt  on 
the  part  of  the  testator  to  execute  a  power  to  devise  in  viola- 
tion of  legal  rules,  in  consequence  of  which  the  execution  is  in- 
valid, does  not  create  a  case  for  election.  Hence,  where  he 
appoints  by  his  will  to  a  stranger  in  a  mode  which  is  invalid 
for  remoteness,  and  by  the  will  gives  a  legacy  to  the  object  of 
the  power,  the  latter  need  not  elect,  for,  the  appointment  being 
absolutely  invalid,  the  court  will  read  the  will  as  though  it 
was  not  in  it.- 

Xo  necessity  for  an  election  exists  where  the  testator  in  the 
valid  execution  of  a  power  by  will  gives  the  property  abso- 
lutely, but  adds  to  the  execution  precatory  language  not  dis- 
posing of  the  property  appointed,  but  requesting  the  objects 
of  the  power  to  devote  a  portion  of  the  property  to  the  benefit 
of  a  stranger.  Where  it  is  the  duty  of  the  testator  under  the 
power  which  he  possesses  to  give  property  absolutely  to  A.,  he 
cannot  put  A.  to  an  election  by  giving  him  that  property  in  trust 
for  B.,  or  coupled  with  a  request  that  he  apply  it  to  the  bene- 
fit of  B.  and  giving  A.  property  of  his  own  absolutely.' 

§  74'^.  Election  aniouir  tenants  in  oonimou  and  between 
the  life  tenant  and  remaindermen. —  AVherc  pro))erty  not  be- 
longing to  the  testator,  but  which  is  disposed  of  in  his  will, 

lAplin's  Tru.sts.    13    W.    R    IOG'2;  v.  Bowles,  2  Russ. &  My.  301 ;  Blacket 

Fowler's  Tru-st,  27  Beav.  302.  v.  Lamb,  U   Beav.  482;   Church   v. 

■■iWoUaston  v.   King.  L.  R  8  Eq.  Kemble.  5  Sim.  525:  White  v.  White, 

105,  175;  In  re  Warren's  Trusts.  I^  R  L.  R  22  Ch.   D.  555;   Woolridge  v. 

26  Ch.  D.  208,  219.     A  case  for  elec-  Woolridge,  1  Jolins.  (Eng.)  03;  In  re 

tion  does  not  arise  where  tl»e  tes-  Warren's  Trusts,  L.  R  26  Cli.  Div. 

tator   liaving  a   power  of   devising  208,220.    Where  tlio  testator,  liaving 

property  wliirh,  in  default  of  exe<"U-  made  a  valid  apiiointnicnt  under  a 

tion,  will  go  to  A.,  refniins  from  e.xe-  jxiwer,  attempts  to  revoke  it  hy  a  will 

cutingit undera  mi'^taken  Ix'liff  that  which  gives   the  property   thus  ap- 

the  projKTty   in  <h'fault  of  apjKjint-  jxiinted  to  straugi-rs,  and,  hy  the  r»'- 

ment  will   go  to  M.,  and  in   his  will  voking  instrunu-nt,  gives  property  of 

expresslyso  stating,  gives  other  prop-  liis  own  to  tlie  objects  of  (he  |M)wer, 

erty  to  A.     A.  is  not  <"om|H;lied  to  a  cxtse  for  an  election  by  the  objects 

elect  Langslow  V.  Ijint^low,21  Boiiv.  uriscH.     CoojM'r  v.  Cooper,  Ij.  ROCh. 

r»52;  Bf)x  V.  Barrett,  k  R  3  Kq.  2-14.  App.  15.  U  R  7  11.   I.^  53;  Coutts  v. 

'King  V.  King.  15  Jr.  Ch.  R-p.  iV.t;  Ackworth,  U  R  9  Eq.  510. 
Kampf  v.  Jone.H,  2  Keen,  750;  Carver 


1034:  LAW    OF    WILLS.  [§  743. 

liolonos  to  others,  who  take  in  succession  as  tenants  for  life  and 
reuuiindennen,  the  successive  takers  have  a  i<ej)arate  ri(//d  of 
ekction.  Tlie  remaindermen  are  not  bound  by  the  election  of 
the  life  tenant.^ 

Thus,  where  the  testator  gave  a  life  estate  to  A.,  with  re- 
mainder to  his  children,  and  provided  that  this  legacy  should 
be  in  satisfaction  of  all  claims,  either  of  A.  or  of  his  children, 
existing  under  certain  marriage  articles,  A.,  upon  electing  to 
take  under  the  will,  forfeited  his  rights  under  the  marriage 
articles,  but  his  choice  did  not  bind  his  children,  \vho  might 
take  as  remaindermen  under  the  marriage  settlement.-  So, 
where  several  persons,  who  are  entitled  as  tenants  in  common 
to  property  disposed  of  in  the  \vill,  are  compelled  to  elect,  the 
minority  are  not  bound  by  the  majority;  some  may  take  under 
the  will,  others  against  it.  If  the  person  electing  to  take  under 
the  will  is  heir  at  law  of  the  testator,  he  must  relinquish  every- 
thing given  him  by  the  will;  while  those  wdio  take  against  the 
will  cannot  take  property  disposed  of  by  it.' 

§  74){.  The  right  of  election  does  not  inure  to  beir. —  The 
right  to  elect  is  personal.  It  cannot  usually  be  exercised  by  the 
heir  or  the  personal  representative  of  the  person  who  w^as  en- 
titled to  elect,  though  the  latter  dies  before  the  expiration  of 
the  period  allowed  by  the  statute  for  an  election.* 

Thus,  the  statutor}'-  right  to  elect  does  not  pass  to  the  heirs 
of  the  widow,  for  their  interests  and  hers  are  not  identical,  and 
the  property  which  she  might  have  taken  if  she  had  elected 
might  never  have  come  into  the  possession  of  her  heirs.  The 
person  who  had  the  right  to  elect,  and  his  heirs  or  personal  rep- 
resentatives, will  often,  of  necessity,  view  their  personal  inter- 
ests from  diiferent  standpoints;  for  while  to  elect  against  the 

^  Long  V.  Long,  5  Ves.  465.  v.  Carman,  5  Md.  503;  Crozier's  Ap- 

-iWard  V.  Baugh,  4  Ves.  623,  627.  peal,  90  Pa.  St.  384;   Jackson "s  Ap- 

SFytclie  V.  Fytche,  19  L.  T.  (N.  S.)  peal,  126  Pa.  St.  105,  107:  Men-ill  v. 

343.  344.  Emery,  10  Pick.  507.     In  Welcli  v. 

*  Donald  v.  Portis,  42  Ala.  29,  31 ;  Anderson,  28  Mo.  293,  299,  it  was  held 

Fosher  v.  Guilliams,  120  Ind.  172, 175;  that  a  failure  to  notify  the  widow  of 

"Wilson    V.   Moore,  86   Ind.   244,  247;  her  right  to  elect  did  not  confer  the 

Church  V.  McLaren,  85  Me.  122,  120;  right  to  elect  upon  her  heir.     But  see 

Boone  v.    Boone.   3  Harr.   &   McH.  contra.  In  re  Proctor.  103  Iowa,  232, 

(Md.,  1791),  95;   Hawkins  v.  Bohhng,  239,  72  N.  W.  K.  516,  as  to  widows 

168  111.  214.  48  N.  E.  R  94,  96;  Ather-  distributive  share. 

ton  V.  Corlis,  101  Mass.  44,  45;  Collins 


§   743.]  DOCTRIXE   OF   EQUITABLE    ELECTION.  lUoO 

will  may  greatly  benefit  the  widow,  the  reverse  might  be  true 
with  respect  to  her  heirs  or  her  next  of  kin.  Thus,  a  life  an- 
nuity given  her  by  the  will  might  be  more  valuable  than  what 
she  would  take  by  the  law;  yet,  as  the  antuiltij  ceases  ic'dh  her 
life,  her  heirs,  in  case  of  her  death  witliin  the  period  during 
which  she  must  elect,  would  prefer  to  take  under  the  law. 
Again,  the  testamentary  provision  made  for  her  may  have  been 
the  result  of  a  family  agreement  between  her  and  her  husband, 
which  would  not  bind  her  heirs.  Her  acquiescence  in  it  might 
have  arisen  out  of  respect  for  his  wishes,  or  out  of  considera- 
tion for  the  needs  of  those  whom  he  has  made  the  objects  of 
his  favor,  and  these  considerations  might  wholly  fail  to  have 
any  effect  upon  the  minds  of  those  who  are  her  heirs  or  next  of 
kin.^  This  is  the  general  rule  where  the  widow,  or  any  other 
person  having  the  right  to  elect,  has  an  opportunity  to  exercise 
it  before  his  death,  and  his  failure  to  do  so  is  not  the  result  of 
the  fraud  2  of  others  or  of  circumstances  over  which  he  has  no 
control.  But  in  some  cases,  where  an  election  was  prevented 
by  fraud  or  by  an  unavoidable  accident,  the  court  has  permitted 
an  election  after  the  death  of  the  party.  Thus,  Avhere  a  will 
calling  for  an  election  was  not  discovered  until  after  the  death 
of  the  person  who,  if  living,  would  have  had  the  right  to  elect, 
the  court  elected  for  his  heirs  as  was  most  advantageous  for 
them.' 

Under  particular  circumstances  it  may  be  inequitable  not  to 
permit  the  heir  or  personal  representative  of  a  deceased  person 
to  elect.  The  case  of  an  election  by  the  widow  in  respect  to 
her  dower  is  siii  generic;  for,  where  she  dies  without  an  ek^ction 
made  by  her  personally,  her  right  to  dower  expires  with  her. 
No  interest  whatever  in  that  passes  either  to  her  heir  or  to  her 
next  of  kin,  and  as  they  arc  not  deprived  of  any  ])roperty  by 
the  will  under  which  slie  would  have  been  compelled  to  elect, 
if  she  h.'ul  survived,  they  have  no  right  of  electing.  They  can- 
not be  required  to  elect.  P.iit  where?  any  person  who  is  hound 
to  elect  dies  without  having:  done  so,  and  the  jtntperty  which 
the  will  bequeaths  t<»  him,  and  nUolih pr<>]u  vtij  irhirli  tfi,  uu'/f  /nrs 

'Sherwoo<l      v.    Nowton,    G    (Sriiy  ^Spniaii<<-     v.      I)iirlitiK't'»n    (I>rl., 

(Mjihs.).  :W7.  «W.  1HU7).  :Hi  All.    K.  «1<>;;.     And   srv  also 

•  FrjHhor  V.  Uuilliums,  120  Ind.  17'J,  FyU;ljc  v.  lyti  he,  HI  I^  T.  (N.  S.)  yJU, 

IT -J.  :i\\. 


lOoG  T.AW    OF    WILLS.    '  [§   744. 

g'n'ni  to  anotJu^r,  goes  to  his  heirs  or  personal  representatives, 
the  hitter  ought  to  be  conipeHed  to  ckK-t,  in  fairness  and  justice 
to  all  coneerneil  in  the  will.  If  both  pieces  of  property  devolve 
upon  the  same  persons,  as,  for  exam]>le,  where  both  are  personal 
property,  passing  to  the  legatees  or  next  of  kin  of  the  person 
who  had  the  right  to  elect,  those  persons  must  elect.  Each  of 
the  next  of  kin  has  a  separate  right  of  election  and  is  not 
bound  by  the  act  of  the  majority  or  of  the  administrator.  But 
where,  on  the  death  of  a  person  who  has  failed  to  elect,  the 
])roperty  which  he  owns  and  the  property  which  is  given  him 
goes  to  different  persons  under  the  law,  as  when  the  former  is 
real  property  which  goes  to  his  heirs,  and  the  other  is  personal 
property  which  goes  to  the  executor  of  his  will,  there  can  be  no 
election.  The  executor  need  not,  because  he  cannot  elect.  Nor 
need  the  heir  do  so.  But  in  such  a  case  that  person,  whether 
the  heir  or  the  executor,  to  whom  passes  that  property  which 
the  testator  in  the  original  will  had  the  absolute  right  to  dis- 
pose of,  must  compensate  the  persons  who  were  disappointed 
under  that  will.  Thus,  for  example,  let  us  suppose  A.  shall  de- 
vise to  C.  money  which  belongs  to  B.,  and  bequeath  to  B.  land 
which  he  (A.)  owns  absolutely.  On  the  death  of  B.  without 
making  an  election,  B.'s  money,  which  Avas  attempted  to  be 
given  to  C,  goes  to  B.'s  personal  representatives,  and  the  land 
which  A.  gave  B.  goes  to  B.'s  heir.  But  the  latter  is  bound  to 
make  good  to  C.  the  legacy  which  was  given  to  him  in  the  will 
of  A.^ 

§  744.  The  doctrine  of  election  in  its  application  to  the 
right  of  dower. —  Long  before  the  creation  of  the  doctrine  of 
election  in  equity,  courts  of  law  in  England  had  been  accus- 
tomed to  recognize  a  somewhat  similar  principle.  It  was  a  wel  I 
recognized  rule  in  law  that  if  the  wife  accepted  a  jointure  made 
for  her  during  coveiture  by  entering  upon  the  land  comprised 
in  it,  she  would  be  estopped  from  claiming  dower  in  all  the 
lands  of  which  her  husband  died  seized.^  So,  also,  in  a  case 
decided  in  the  reign  of  Queen  Elizabeth,'  it  was  held  that  the  re- 
covery of  dower  by  a  widow  was  a  bar  in  an  action  brought 

iPickersgill  v.  Rodger,  L.  R.  5  Ch.  128;    Lacey  v.  Anderson,   Cases  in 

D.  163,  175.  Chancery,  l.lo;  Boynton  v.  Boynton, 

23  Leon.  373.  1  Bro.  C.  C.  445. 
•Gosling  V.  Warburton,  Cro.  Eliz. 


§   T4i.]  DOCTKIXE    OF    EQUITABLE    ELECTIOX.  1037 

by  her  to  recover  the  provision  made  for  her  ia  her  husband's 
will  in  lieu  of  dower.  Thus  it  will  be  seen  that  the  principle  of 
election  between  inconsistent  benefits,  so  far  as  it  applies  to 
the  widow's  dower,  is  not  confined  to  courts  of  equity,  nor  did  it 
have  its  origin  there.  But  it  is  in  equity  that  the  doctrine  of 
election  in  its  relation  to  dower  has  received  the  fullest  con- 
sideration and  most  abundant  illustration.  The  right  of  dower 
is  regarded  with  great  favor  both  in  law  and  in  equity.  The 
widow  should,  and  usually  does,  receive  the  utmost  considera- 
tion from  the  court.  The  presumption  is,  in  the  absence  of  a 
clearly  contrary  intention,  that  the  testator,  in  devising  prop- 
erty to  her  in  his  will,  intends  it  as  a  bounty  and  not  as  a  sub- 
stitute for  what  she  is  entitled  to  of  right.  So  it  is  a  general 
rule  in  equity,  as  regards  the  widow's  dower,  that  the  court  will 
not  compel  her  to  elect  between  her  dower  or  other  statutory 
right  and  interest  which  she  may  have  in  the  estate  of  the  testa- 
tor, and  a  provision  made  for  her  in  the  will,  unless,  ^V6'i;,  it  shall 
appear  in  express  terms  that  the  bequest  or  devise  was  given  in 
lieu  or  satisfaction  of  her  dower;  or  second^  unless  it  appears 
by  clear  and  manifest  implication  on  the  circumstances  of  the 
case  that  the  testator  intended  her  to  elect.  She  will  not  be 
compelled  to  elect  unless  her  claim  of  dower  is  plainly  incon- 
sistent and  irreconcilable  Avith  the  will  of  the  testator  and  so 
repugnant  to  it  that  loth  her  claim  of  dower  and  the  devises  in 
the  will  cannot  consistently  Ve  upheld.  She  has  a  right  to  take 
both,  despite  the  fact  that  the  benefit  given  by  the  will  may 
be  much  greater  in  fact  than  her  dower.^ 

1  McLeod  V.  McDonnell,  6  Ala.  23G,  Woods,  G3  111.  285;  Smith  v.  Baldwin, 
239  (1844);  Ililliard  v.  Binfonl,  10  Ahu  2  Ind.  104;  Kelly  v.  Stinson,  4  Blackf. 
«77;  Apperson  V.  liolton,  20  ArU.  418,  (Ind.)  387;  Ka;;sdale  v.  Parrish,  74 
426;  Lordv.  Lord,  23  Conn,  (1854),  327;  Ind.  101,  100;  O'lliirrow  v.  Whitney, 
Ailing  V.  Chatlield,  42  Conn.  (1875),  85  Ind,  140,  142;  Wilson  v,  Moore.  8(i 
270;  Nel.son  v.  Poineroy.Ol  Conn,  257,  Ind.  244,  247;  liurley  v,  Mclver,  110 
29  Atl.  U,  534;  Antliony  v,  Antljony.  Ind,  53,  57;  Like  v.  Cooper,  132  Ind. 
55  Conn.  250,  258. 1 1  Atl.  \L  45;  Cliand-  301, 31  N.  R  It.  1 1 18;  Hichards  v.  Kich- 
ler  V.  W«xxl\vard.  3  Ilarr.  (Del.)  428;  ards,  00  Iowa.  (i0(!.  58  N*.  W.  R  92C; 
Warthen  v.I\arsoii.33(;a.  3H5;Tooko  I'arkcr  v.  Ilayd.ii.  84  lowu,  403,  400; 
V.  Hardeman,  7  (Jiu  20  (1H40);  Jen-  Howard  v.  Watson.  70  htwa.  220.  230; 
ninKrt  V.  Smith.  20  Hi.  110  (1802);  .Alittfcr  v.  Wiley,  3 J  Iowa.  214;  Bald- 
Brown  V.  I'itncy.  30  III.  408;  Stur^'is  win  v.  Hill.  07  iuwa.  5«(5,  00  N,  W,  It, 
V.  Kwing.  18  111.  17('.;  Mowhry  V.  M<iW-  880;  Krankit  v.  WieKaiid,  07  Iowa, 
bry.  04  III.  3H;!;  Warr.-n  v.  Warn-ii,  704.  00  .\.  W.  W.  OIN;  Sully  v.  Nchcn- 
1  iM  III.  Oil,  ::('.  X.  K.  H.  Oil:  ColliuB  V.  gull,    30    Iow;i,   3I();    DuiiKherty    v. 


1038 


LAW    OF    WILLS. 


[§ 


"Where  tlie  widow  is  not  put  to  an  election,  either  expressly 
or  l)v  manifest  implication,  those  to  whom  the  testator  has  de- 
vised the  land  must  take  it  subject  to  her  dowei\  Xor  does  it 
follow  because  the  value  of  the  property  thus  devised  is  ulti- 


Daugherty,  69  Iowa,  679.  29  N.  W,  R. 
778:  In  re  Blaney.  73  Iowa,  113,  114, 
34  N.  W.  R.  768:  Howard  v.  Smith, 
78  Iowa,  73,  78,  4C!  N.  W.  R.  585;  Sever- 
son  V.  Severson.  68  Iowa,  656,  657,  27 
N.  W.  R.  811;  Bailey  v.  Duncan,  4 
Mou.  (Ky.)  256,  265;  Sliaw  v.  Shaw, 
2  Dana  (Ky.).  242:  Knighton  v.  Young. 
22  Md.  359;  Adams  v.  Adams,  5  Met. 
(Mass.)  277,  279;  McGowen  v.  Bald- 
win, 46  Neb.  477,  49  N.  W.  R.  251; 
Smith's  Appeal,  60  Midi.  136,  27  N. 
W.  R.  136;  Fulton  v.  Fulton.  30  Miss. 
596;  Godman  v.  Converse.  43  Neb. 
463.  61  N.  W.  R.  756;  Brown  v.  Brown. 
55  N.  H.  106;  Gray  v.  Gray,  16  Misc. 
R.  226.  30  N,  Y.  7;  Morgan  v.  Titus,  3 
N.  J.  Eq.  201 ;  Norris  v.  Clark,  10  N. 
J.  Eq.  51;  Colgate  v.  Colgate.  23  N. 
J.  Eq.  272;  Haseuritter  v.  Hasenrit- 
ter.  77  Mo.  162;  Schwatken  v.  Dandt, 
53  Mo.  App.  1,  3;  Adsit  v.  Adsit,  2 
Johns.  Ch.  (N.  Y.)  448;  Stewart  v. 
Stewart,  31  N.  J.  Eq.  398. 408;  Savage 
V.  Burnham.  17  N.  Y.  561.  577;  Tobias 
V.  Ketchum,  32  N.  Y.  319.  326;  Dodge 
V.  Dodge,  31  Barb.  (N.  Y.)  413;  Jack- 
son V.  Churchill,  7  Cow.  (N.  Y.)  287; 
Leonard  v.  Steele,  4  Barb.  (N.  Y.)  20; 
Mills  V.  Mills,  28  id.  454;  Lasher  v. 
Lasher,  13  Barb.  (N.  Y.)  106;  Nelson 
V.  Brown,  144  N.  Y.  384;  Church  v. 
Bull,  2  Denio.  430;  Larrabee  v.  Van 
Alstine,  1  Johns.  (N.  Y.)  370;  Smith 
v.  Kniskern.  2  Johns.  Ch.  448;  Kon- 
valinka  v.  Schlegel,  104  N.  Y.  225,  9 
N.  E.  R  868;  Closs  v.  Eldert,  51  N.  Y. 
S.  881 ;  Wood  v.  Wood.  5  Paige  (N.  Y.), 
597,  601:  Fuller  v.  Yeates,  8  id.  325; 
Sanford  v.  Jackson,  10  id.  266;  In  re 
McDonald's  Estate,  2  Ohio  N.  P.  232; 
Webb  V.  Evans,  1  Binn.  (Pa.,  1809), 
565,  573,  1  Yeates,  424;  Sample  v. 
Sample,  2  Yeates  (Pa.),  433:  McCul- 
lough  v.  Allen,  3  Yeates  (Pa.).  10; 
Hamilton  v.  Buckwalter,  2  Yeates, 


389;  Cauffman  v.  Cauflfman,  17  S.  & 
R  (Pa.)  16,  25;  Callahan  v.  Robinson, 
30  S.  C.  249,  9  S.  E.  R  120;  Su/nerel 
V.  Sumerel,  34  S.  C.  85,  12  S.  E.  R. 
932;  Rivers  v.  Gooding,  43  S.  C.  428; 
Gordon  v.  Stevens,  2  Hill.  Ch.  (S.  C.) 
48;  Crown  v.  Caldwell,  Speers'  Ch. 
(S.  C.)  322;  In  re  Hatch,  60  Vt.  160. 
18  Atl.  R  814;  Turner  v.  Scheiber.  89 
Wis.  1,  61  N.  W.  R  280;  Melnis  v. 
Pabst,  93  "Wis.  140,  149;  Herbert  v. 
Wren.  7  Cranch,  370;  Dundas  V.  Hitch- 
cock, 12  How.  (U.  S.)  256;  United 
States  V.  Duncan,  4  McLean,  99. 
Where  the  testator,  after  devising 
land  charged  with  the  support  of  his 
widow  out  of  the  rents  and  profits, 
gave  her  all  the  cash  on  hand  at  his 
death,  it  was  held  that  the  lands  de- 
vised were  subject  to  dower,  and 
that  the  widow  need  not  elect.  Riv- 
ers V.  Gooding,  43  S.  C.  428,  21  S.  E. 
R  310.  It  is  necessary  in  order  that 
the  acts  of  the  widow  may  be  equiv- 
alent to  an  election  under  the  will, 
and  a  waiver  of  her  rights  in  her 
husband's  estate  which  she  enjoys 
under  the  law,  that  she  shall  act  with 
a  full  knowledge  of  her  riglits,  and 
of  all  the  conditions  and  circum- 
stances of  her  husband's  estate.  It 
must  affirmatively  appear  that  she 
intended  by  her  actions  to  waive  her 
right  of  dower  and  to  accept  the  testa- 
mentary provision.  These  acts  must 
be  plain  and  unequivocal  in  order  to 
constitute  an  election.  Her  mere  ac- 
quiescence in  the  existing  condition 
of  affairs,  without  an  intelligent  and 
deliberate  choice,  is  not  a  valid  elec- 
tion which  will  estop  her  from  claim- 
ing both  under  the  law  and  under 
the  will.  Milliken  v.  Welliver,  37 
Ohio  St.  460;  Sill  v.  Sill,  31  Kan.  248, 
256. 


§  T-tJ:.]  DOCTRINE    OF    EQUITABLE    ELECTION.  1039 

inately  diminished  by  the  assertion  of  her  right  that  she  is 
compelled  to  elect.  Any  implication  of  an  intention  on  the 
part  of  the  testator  that  his  widow  shall  elect  between  the  will 
and  her  dower  right  in  his  real  property  must  clearly  appear. 
The  provisions  of  the  will,  where  the  direction  that  she  shall  elect 
is  not  express,  must  be  clearly  inconsistent  with  the  assertion 
of  her  dower  right  in  his  lands.  The  intention  of  the  testator 
to  put  his  widow  to  an  election  must  be  ascertained  from  the 
language  of  the  will,  for  it  is  not  for  the  court  to  speculate 
what  the  testator  might  have  thought  or  done  if  the  question 
of  his  wife's  dower  had  been  called  to  his  attention  while  he 
was  executing  his  will.  In  the  majority  of  cases  where  there 
is  no  express  direction  that  the  devise  shall  be  in  lieu  of  dower, 
it  is  probable  that  the  testator  had  no  clear  conception  of  the 
rule  under  which  his  wife,  if  not  compelled  to  elect  by  the 
terms  of  the  will,  might  claim  both  dower  and  the  testamentary 
benefit.  The  rules  and  principles  of  election,  so  extremely  tech- 
nical in  their  character,  are  not  within  the  knowledge  of  tes- 
tators generally;  and  in  the  majority  of  cases,  where  a  will  is 
framed  without  professional  assistance,  the  testator  is  prob- 
ably unaware  of  the  right  of  his  widow  to  claim  her  dower 
and  also  what  he  gives  her  in  the  will.  But  these  considera- 
tions have  no  weight  against  the  presumption  that  every  one 
is  bound  to  know  the  law,  and  they  are  therefore  not  to  be 
taken  into  account  by  the  court. ^ 

1  In  Srinford  v.  Jackson,  10  Paige,  cept  such  declared  intent  of  the  tes- 

268,  Walwortli,  C,  says:  "The  com-  tator.     But  to  bar  her  of  her  dower 

mon-law  principle  upon  which  the  by  implication,  where  tlie   testator 

widow  Ls  compelled  t<;  elect  between  has  not  declared  his  intention  on  the 

her  dower  and  a  provision  made  for  subject  by  his  will,  tlie  provisions  of 

her  in  the  will  of  her  deceascii  hits-  the  will,  or  some  of  tliem,  must  beal>- 

Ijand   is   well   settled,  and  the  only  solutely  inconsistent  with  her  claim 

diftifulty  arises  in  ap|)lyinf5  it  to  the  of  dower;  so  that  the  intt>iition  of 

varying?  circumstan«"es  of  each  pur-  the  testator  will   be  d<>fcatfd,  as  to 

ticular  cas**.     Where  the  testator  in  some  part  of  the  property  devised  or 

terms    declares    that   the    provision  lMM{ueathed  toothers,  if  she  takes  her 

made  in  favor  of  the  wife  is  in  lieu  dower  as  w(>ll  as  the  provision  made 

ot  dower,  if  she  accepts  tlie   provis-  for  her  in  the  will.    .    .    .    Andtode 

ion   she  cannot  have  her  d(*wer  in  priv«<  the  wife  of  her  dower,  or  to 

the   t<wtAtor's   estate    also,    even    in  eom|M'l   her  to  ele<-t,  it  is  not  suMi- 

those  caws  where  the  assij^nmc^nt  of  eient  that  the  provisiotj   of  the  will 

lier  dower  wouM  not  interfere  with  render  itdou'ttfnl   whether  the  te»- 

any  other  provision  of  the  will,  ex-  tator  intended  she  should  have  her 


1040  I- AW   OF   AVII.LS.  [§  7-A5, 

§  745.  A  fijeneral  devise  of  land  to  the  widow  or  a  devise 
of  all  the  lauds  of  the  testator  iu  trust  to  sell  does  not  bar 
dower. —  It  is  well  settled,  in  the  absence  of  a  statute  enacting 
that  every  devise  of  land  to  the  widow  of  the  testator  shall  be 
presumed  to  be  in  lieu  of  dower,  that  a  mere  devise  in  general 
terms  of  a  part  of  the  real  estate  of  the  testator  to  his  widow 
does  not  prevent  her  from  claiming  dower  in  the  residue.  The 
same  is  true,  a  fortiori,  of  a  money  legacy,  and  in  cither  case  it 
is  not  material  to  raise  a  case  for  an  election  that  the  testa- 
mentary provision  for  the  widow  is  to  cease  with  her  marriage.^ 
And  even  if  the  testator  has  given  all  his  real  jproperbj  to  be 
enjoyed  jointly  by  his  wife  with  others,  she  is  not  prevented 
from  claiming  her  dower  in  the  shares  of  the  others  so  far  as 
it  is  possible  to  ascertain  it. 

All  the  cases  sustain  the  rule  that  a  devise  of  lands  to  trust- 
ees for  the  purpose  of  sale,  w^hether  to  pay  debts  or  legacies,  is 
not  enough,  taken  alone,  to  bar  dower  in  the  lands  thus  de- 
vised. If  the  testator  had  conveyed  or  attem})ted  to  convey 
his  lands  during  life,  his  wife  must  have  joined  in  the  deed  of 
conveyance  in  order  that  the  purchaser  might  secure  a  clear 
title.  There  is  nothing  in  the  creation  of  a  trust  to  sell  lands 
which  indicates  that  the  testator  intended  his  trustees  to  pos- 
sess a  greater  power  than  he  possessed  himself.  He  intended 
his  lands  to  be  sold;  and,  in  the  absence  of  a  contrary  expres- 
sion of  intention,  it  will  be  presumed  that  he  intended  them  to 
be  sold  subject  to  all  their  usual  incidents,  including  dower, 
as  they  would  have  been  had  he  himself  conveyed  them.^    The 

dower,  in  addition  to  the  provision  32  N.  Y.  319;  Lewis  v.  Smith,  9  N.  Y. 

made  for  her  by  the  will;   but  the  502:   Savajre  v.  Burnham,  17   N.  Y. 

terms  and  provisions  of  the  will  must  561,   577;  Wood   v.  Wood,   5    Paige 

be  such  as  to  show  an  evident  inten-  (N.  Y.),  601;   Bull  v.  Church,  5  Hill 

tion  on  the  part  of  the  testator  to  (N.  Y.),  207;    Vernon  v.  Vernon,  53 

exclude  the  claim  of  dower."  N.  Y.  351,  363;  Gordon  v.  Stevens,  3 

1  Lawrence  v.  Lawrence,  2  Vern.  Hill  (S.  C),  Cb.  46;  Hall  v.  Hall,  8 
365,  1  Eq.  Cas.  Abr.  218;  Hitchin  v.  Rich.  (S.  C.)  Eq.  407;  Herbert  v. 
Hitchin,  Pre.  Ch.  138,  2  Vern.  403.  Wren.  7  Cranch  (U.  S.),  370,  379.  And 

2  Ellis  v.  Lewis,  3  Hare,  310,313;  see  also  Lemon  v.  Lemon,  8  Vin.  Abr., 
Gibson  v.  Gibson,  1  Drew.  42,  57;  Dower,  p.  336,  pi.  45;  French  v.  Da- 
Bending  V.  Bending,  3  Kay  &  J.  257;  vies,  2  Ves.  Jr.  572:  Dowson  v.  Bell, 
Church  V.  Bull,  2  Denio  (N.  Y,  1845),  1  Keen,  761;  Strahan  v.  Sutton,  3 
430;  Adsit  v.  Adsit.  2  Johns.  Ch.  Ves.  249;  Incledon  v.  Northcote,  3 
(N.  Y,  1817),  448;  Fuller  v.  Yates,  5  Atk.  430, 436;  Brown  v.  Barrj-,  2  Dick. 
Paige  (X.  Y),  601 ;  Tobias  v.  Ketchum,  685.     In  Konvalinka  v.  Sclilegel,  104 


§  T45.]  DOCTRINE   OF    EQUITABLE   ELECTION.  1041 

rule  is  not  varied  where  the  direction  of  the  trustees  to  sell 
lands  is  coupled  with  a  power  to  convey  a  good  title;  for  the 
trustees  could  not,  in  any  event,  convey  any  title  except  that 
which  the  testator  had  in  his  life,  which  was  subject  to  dower 
durinof  coverture.^ 

The  question  also  arises  whether  the  fact  that  the  widow  is 
to  receive  a  substantial  provision  out  of  the  proceeds  of  the 
land  he  has  ordered  to  be  sold  will  bar  her  dower  in  them. 
The  general  rule  is  applicable  to  these  cases.  If  the  provision 
for  the  widow  out  of  the  proceeds  of  the  land  is  such  that  to 
permit  her  to  receive  it,  and  also  to  recover  her  dower  in  the 
property  which  has  been  sold,  would  be  inconsistent  with  the 
whole  will  and  tend  to  defeat  some  substantial  provision  of  it, 
it  may  be  presumed  that  the  testator  intended  her  to  elect.^ 
Thus,  if  the  residue  of  the  proceeds,  after  the  deduction  of  the 
widow's  legacy,  has  been  bequeathed  for  the  support  of  a 
minor  child  for  whom  no  other  provision  has  been  made,  and 
who  would  be  deprived  of  his  support  if  the  widow  is  not  com- 
pelled to  elect,  it  will  be  presumed  that  the  legacy  was  in  lieu 
of  dower.^ 

A  distinction  which  is  rather  technical  has  been  made  by 
the  English  decisions  between  a  case  in  which  property  is  given 
in  trust  to  sell  only,  and  a  case  where  it  is  given  to  the  trustee 
with  a  power  to  lease  from  year  to  year  or  for  a  term  of  years. 
In  the  latter  case  the  English  chancellors  held  that  the  widow 
must  relinquish  her  dower  right  in  the  lands.  The  impossi- 
bility of  leasing  lands  for  any  hmgth}^  period  of  time  under 
circumstances  where  the  widow  would  have  the  legal  ri-ilit  to 
demand  that  a  third  part  of  the  lands  leased  should  be  set  out 
by  metes  and  bounds  during  lier  life  rai.ses  a  presumjitiun  that 

N.  Y.  2?.',,  9  N.  E.  R  868,  the  testator,  lj(.'(iuost  of  tlio  residuo  with  u  power 

after  dividing  liis  Jiou.seliold  fiiriii-  of  sale  to  be  exercised  only  if  uece»» 

tare  Ixitween  his  wife  and  chihintn,  siiry. 

Kave  tiio  residue  of  his  estate,  both  'Kinsey    v.    "Woodward,    '6    li.iir. 

r«-al  and  |x;rsonaI,to  exenutorsto  wil  (Del.)  4'){),  UW. 

and  divide  anion;^  his  wif<i  and  chil-  -  Kllis  v.  Lewis,  ']  Ilan-,  .IKl;  Par- 

dren.  The  court  held  that  Ihe  widow  ker  v.  Downinj^,  4  L.  J.  Cli.  IHS. 

ini^^ht  claim  dower   in   all  the  real  =■  H«Mhert   v.  Wren,  7  ( 'rancii,  370, 

projHjrty  witliout  relinijui.-.liin;^  her  .'tTH;  Colpilt!  v.  Coital  e,  l.';i  N.J.  Kq. 

Hhureofth"'  [.lo-i.-eds.     In  Kinilx-I  v.  IJTIJ;  Uhahnurb  v.  fjtoril,  JJ  Von.  &  li, 

Kini»M;l,  4;5  N.  Y.  S.  :}00.  1 J  Ai)|..  hi  v.  i>:ji>. 
570,  the  same  rule  was  applied  to  u 
GO 


1043  LAW  OF  WILLS.  [^  745. 

the  testator  intended  the  lands  shoukl  be  free  from  dower. 
"While  a  person  might  be  willino^  to  purchase  lands  suhjeet  to 
a  riirht  of  dower  which  the  widow  could  release,  and  which,  as 
it  is  less  than  the  value  of  the  fee,  would  not,  if  enforced,  re- 
sult in  his  eviction,  he  w^ould  hardly  be  willing  to  lease  such 
lands  incumbered  by  her  right,  the  assertion  of  which  would 
be  equivalent  to  his  eviction.^ 

The  fact  that  land  in  Avhich  the  widow  has  a  right  to  have 
dower  assigned  to  her  is  devised  to  a  person  to  be  used  in  such 
a  manner  as  will  be  absolutely  inconsistent  with  the  enforce- 
ment of  her  claim  of  dower  is  a  circumstance  which  is  often 
conclusive  that  the  testator  intended  that  she  should  elect. 
In  an  English  case,  where  a  house  w\is  devised  to  the  widow 
for  her  use  for  life  at  a  specified  yearly  rent,  and  she  was 
directed  to  keep  the  house  in  repair,  and  the  residue  of  the 
land  of  the  testator  was  devised  to  strangers,  it  was  held  that 
the  widow  could  not  enjoy  the  life  estate  devised  to  her  and 
have  dower  assigned  her  in  the  same.^  The  fact  that  she  w^as 
to  have  the  personal  enjoyment  of  the  house,  being  absolutely 
inconsistent  with  her  right  to  have  a  third  of  the  property  set 
out  by  metes  and  bounds,  is  a  sufficient  indication  that  she 
must  elect,  although  the  life  estate  was  not  given  to  her  ex- 
pressly in  lieu  of  doAver.' 

1  Hall  V.  Hill,  1  D.  &  War.  94,  1  C.  -  Birmingham  v.  Kirwan,  2  Scb.  & 

&  L.  I'JO;  O'Hare  v.  Chaine,  1  J.  &  Lef.  444. 

Lat.  652,  C02;  Parker  v.  Sowerby,  4  3  In  this  case  Lord  Redesdale  said: 
De  Gex,  M.  &  G.  321,  1  Drew.  488;  "Tlie  result  of  all  the  cases  of  im- 
Grayson  v.  Deakin,  3  De  Gex  &  S.  plied  intention  seems  to  be  that  the 
298;  Linley  v.  Taylor,  1  Gif.  67;  instrument  must  contain  some  pro- 
Lowes  V.  Lowes,  5  Hare,  501 ;  Pepper  vision  inconsistent  with  the  assertion 
V.  Dixon,  17  Sim.  200;  Reynard  v,  of  a  right  to  demand  a  third  of  the 
Spence,  4  Beav.  103;  Sullivan  v.  land  to  be  set  out  by  metes  and 
Mara,  48  Barb.  (N.y.)  523.  A  gift  in  bounds.  .  .  .  Now  in  the  present 
trust  of  real  property  for  the  term  of  case  it  is  clear  the  assertion  of  a 
one  year,  at  the  expiration  of  which  right  to  dower  as  to  the  house  and 
it  is  to  be  turned  over  to  the  widow  demesne  would  be  inconsistent  with 
for  her  natural  life,  or  as  long  as  she  the  disposition  of  the  house  and  de- 
remains  unmarried,  the  trustees  hav-  mesne  contained  in  the  will,  and 
ing  the  power  to  sell  and  give  a  good  therefore  the  widow  cannot  have 
and  sufficient  deed  with  a  devise  of  both.  The  house  and  demesne  are 
the  residue  of  the  estate,  absolutely  devised  with  the  rest  of  the  estate  to 
or  in  fee.  shows  a  clear  Intention  trustees.  That  devise  taken  simply 
that  the  widow  shall  elect  between  might  be  subject  to  the  widow's 
this  provision  and  her  dower.  Cooper  right  of  dower,  but  it  is  coupled  with 
V.  Cooper  (N.  J.,  1897),  38  AtL  R.  198.  a  direction  that  she  shall  have  the 


§  T4G.] 


DOCTKIXE    OF   EQUITABLE    ELECTION. 


1043 


§  746.  Presumption  of  an  election  hy  tlie  widow  from 
efiuality  of  division. —  AVo  will  suppose  that  the  testator  has 
divided  all  his  property,  both  real  and  personal,  between  his 
widow  and  another  person  equall3^  The  question  then  arises, 
is  the  widow  entitled  to  her  moiety,  and  also  to  her  dowser  in 
the  real  property  which  is  given  to  the  other  person,  or  does 
the  intention  to  make  an  equal  division  raise  a  conclusive  pre- 
sumption that  the  testator  intended  she  should  accept  one-half 
in  satisfaction  of  her  dower  right  in  the  other?  In  an  Eng- 
lish case,  where  the  testator  said:  "I  give  to  my  wife  A.,  and 
my  two  children,  all  my  estates  whatsoever,  to  be  eriiudly  di- 
vided among  them^  whether  rer.l  or  personal,"  ^  it  was  held  that 

enjoyment  of  the  house  and  demesne,  of  the  widow  to  his  sister.  Sir  James 
paying  a  rent  of  13s.  per  acre,  which  Wigram  held  that  the  devi-se  should 
mast  be  out  of  the  whole.  Then  fol-  not  be  held  inconsistent  with  and  in 
low  directions  that  she  shall  keep  lieu  of  dower,  and  that  the  widow 
the  house  in  repair,  that  she  shall  was  not  put  to  her  election.  He  no- 
not  alien,  except  to  persons  in  re-  ticesthe  three  cases  above  mentioned 
mainder;  directions  wliich  apply  to  (Clialmers  v.  Storril,  2  V.  &  B.  22; 
tiie  whole  of  the  house  and  demesne,  Diokson  v.  Robertson,  Jacob.  503; 
and  could  not  be  considered  obliga-  Roberts  v.  Smith,  1  Sim.  &  Stu.  513), 
tions  on  a  person  claiming  by  dower,  and  held  that  his  determination  did 
.  .  Then  comes  the  question  not  conflict  with  them,  supjiosing 
whether  the  implication  extends  to  that  these  cases  did  not  intend  to 
the  rest  of  the  estate.  I  cannot,  on  overrule  the  doctrine  well  estab- 
the  whole  of  the  case,  think  the  tes-  lished.  that  a  mere  devise  of  land  in 
tat(jr  has  sufficiently  manifested  an  trust  for  sale  did  not  import  an  in- 
intent  that  this  beneficial  interest  in  tention  to  devise  it  otherwise  than 
tlie  hou.se  and  demesne,  given  ujion  in  lieu  of  dower.  lie  does  not  seem 
a  re.served  rent  and  under  certain  to  have  realized  that  the  decision  in 
conditions,  should  be  considered  as  those  cases  was  based  ujton  the  fact 
a  bar  of  (hnver  out  of  the  rest  of  the  that  the  disi)ositi()n  of  the  i)roceeds 


estate.  The  will  may  be  ])erfectly 
executed  as  to  all  other  purjioses 
wil  liout  injury  to  the  claim  of  dower; 
with  respect  to  the  rest  of  the  estate 


was  inconsistent  with  her  claim  for 
dower, and  showeil  an  intention  that 
this  was  in  lieu  of  dower.  He  holds, 
without  reference  to  autiiority,  that 


it  rmiy  be  mortgaged  or  sold  subject  the  direction  to  divide  the  proceeds 
to  that  claim."  "  In  the  ciiHeof  Ellis  of  tlio  sale  cannot  decide  wliut  the 
V.  I>rwiH,  3  Hare.  310,  the  provisions    subject  of  the  sale  is.    I  am  inclined 


of  the  will  were  substantially  Jisthos<j 
in  (Jolgjite's  will.  The  testator  do 
viH<;d  all  hiH  n-al  r-.stat<?  to  a  trustee 
in  trust  to  sell  and  invr-st  the  pn*- 
<«M!ds,  and  Ut  j>ay  the  irifonie  arising 


to  consider  Ihe  judgment  of  Sir  Will- 
iam (irant,  Sir  .John  Leach  and  Sir 
T.  I'luMier  as  of  more  authority  than 
that  of  Vice-chancellor  Wigrain, 
stari<ling  as  it  does  al<jn«<."     Kor  the 


from  one  moiety  f>f  it  to  his  wif(s  dnr-  court  by  ( 'liaiicellor  Zabriskie  in  tlol- 

irig  wiilowhooil,  arul  to  juiy  the   in-  gate  v.  Colgate,  23  N.  J.  K<[.  371>. 

<'orne  of  the  other  moiety  and  of  the  'Chalmers  v.  Storil,  2  Ves.  &  Kea. 

whole  afU;r  the  death  or  r<;marriugo  222.     "Tho  testator  directing  all  his 


104J:  LAW    OF    WILLS.  [§  746. 

the  equality  of  division  intended  to  be  effected  by  the  will  was 
absolutely  inconsistent  with  a  claim  of  dower.  The  testator 
evidently  meant  by  this  language  to  divide  his  real  property 
equally,  which  intention  would  not  be  carried  out  if  the  widow 
was  not  really  compelled  to  relinquish  her  dower.  This  rule 
has  been  criticised  upon  the  ground  that  a  testator  will  be  pre- 
sumed to  have  intended  to  dispose  of  his  own  property  only, 
and  where  he  directs  an  equal  division  of  his  property  he  will 
be  presumed  to  have  intended  to  divide  equally  such  property 
only  as  he  had  an  absolute  power  to  dispose  of,  i.  e.,  his  real 
estate  less  the  dower  interest.^  Despite  this  criticism  of  the 
rule  it  has  been  followed  both  in  England  ^  and  in  America.' 

It  is  well  settled  in  the  absence  of  statute  that  a  mere  devise 
in  general  terms  does  not  put  the  widow  to  her  election.*  A 
gift  of  a  money  legacy  to  the  widow  with  a  devise  of  a  part  of 
the  lands  of  the  testator,  without  any  expression  of  intention 
that  this  is  to  be  received  in  lieu  of  dower,  does  not  put  her  to 
an  election.'^  AYliether  the  gift  of  an  annuity  or  of  a  rent 
charge  for  life  to  be  paid  out  of  the  income  of  real  estate  will 
operate  as  a  bar  to  dower  has  been  much  debated.  In  some 
cases  it  has  been  held  that  a  gift  of  an  annuity  payable  during 
life  or  widowhood,  with  a  devise  of  the  land  subject  to  the 

real  and  personal  estates  to  be  maintenance  of  herself  and  her  chil- 
equally  divided,  the  same  equality  dren  by  her  former  husband,  and 
is  intended  to  take  place  in  the  di-  tliat  the  other  half  of  the  income 
vision  of  the  real  as  of  the  personal  should  be  applied  to  the  mainte- 
estate,  which  cannot  be  if  the  widow  nance  and  education  of  the  testator's 
first  takes  out  of  it  her  dower  and  own  children.  That  intended  equal- 
then  a  third  of  the  remaining  two-  ity  would  be  disappointed  if  the  wife 
tliirds."  Remarks  of  Sir  William  were  in  the  first  place  to  take  her 
Grant,  M.  R.,  in  Chalmers  v.  Storil,  dower." 

2  Ves.  &  Bea.  2:^2.  3  McLeod  v.  McDonnell,  6  Ala.  236, 

1  Jarman,  p.  403,  ch.  XIV.  239  (1844);  Griggs  v.  Veghte  (N.  J., 

-Dickson   v.   Robinson,    Jac.   503;  1895),  19  Atl.  R.8(j7;  Helme  v.  Strater, 

Roberts  v.  Smith,  1  Sim.  &  Stu.  513;  52  N.  J.  Eq.  591,  30  AtL  R.  333;  Closs 

Reynolds  v.  Torin,  1  Russ.  129;  Good-  v.  Eldert,  37  N.  Y.  S.  353,  16  Misc.  R 

fellow  V.  Goodfellow,  18  Bea  v.  356.  104;  Bailey  v.  Byce,  4  Strob.  (S.  C.) 

In  the  case  of  Roberts  v.  Smith,  1  Eq.  84 

Sim.  &  St.  513,  Sir  John  Leach,  V.-C,  <  gee  cases  cited  on  p.  1041. 

said:   "The  principle  referred  to  in  *  Lawrence  v.  Lawrence,  2  Vern. 

Chalmers  v.  Storil  decides  this  case.  365;  Strahan  v.  Sutton,  3  Ves.  249; 

The  plain  intention  of  the  testator  Brown  v.  Parry,  2  Dick.  685;  Incledon 

was  that  the  wife  should  have  half  v.  Northcote,  3  Atk.  430,  430. 
the  income  of  his  jiroperty  for  the 


§   747.]  DOCTKIXE    OF   EQUITABLE    ELECTION.  1045 

annuity  to  other  persons,  ^vas  presumed  to  be  in  satisfaction  of 
dower,  and  that  the  lands  devised  were  not  subject  to  dower.^ 
This  rule  was  repudiated  by  no  less  an  authority  than  Lord 
Ilardwicke,-  and  his  determination  of  the  question  has  been 
followed  as  a  settled  rule  of  law.  There  is  nothing  in  the  gift 
of  an  annuity  or  the  creation  of  a  rent  charge  for  life  which  in 
itself  indicates  any  intention  that  the  provision  thus  made  shall 
be  in  lieu  of  dower  in  the  lands  which  are  charged  with  it. 
Whether  the  annuity  shall  or  shall  not  be  a  bar  to  dower  de- 
pends upon  the  express  language  of  the  will  or  upon  necessary 
implication.^  If  the  rents  and  profits  derived  from  the  land 
which  is  devised  are  not  sufficient  to  satisfy  both  the  annuity 
and  the  dower,  it  may  be  presumed  that  the  testator  gave  the 
annuity  in  lieu  of  dower.^  Particularly  would  this  be  the  case 
where  the  surplus  income  of  the  lands,  after  the  payment  of  the 
annuity,  was  to  be  devoted  to  the  support  of  a  child  or  the 
children  of  the  testator  during  minority.^ 

§  747.  The  effect  of  an  election  by  the  widow  to  take  under 
the  will. —  Where  the  widow  or  other  person  j)ut  to  an  elec- 
tion has  elected  to  take  under  the  will,  he  or  she  is  forever  ab- 
solutely debarred  from  every  right  to  or  interest  in  the  property 
which  belonged  to  him  but  which  the  testator  has  given  to  an- 
other. Thus,  for  example,  where  the  widow  of  the  testator  has 
elected  to  accept  real  or  personal  property  given  her  by  the 
will,  and  which,  either  expressly  or  by  necessary  implication, 
is  to  be  taken  in  lieu  of  dower,  she  is  forever  barred  of  dower, 
not  only  in  the  lands  which  her  husband  owned  at  the  time  of 
his  death,  but  in  those  which  he  had  conveyed  dui'ing  the  cov- 
erture by  deed  of  conveyance  in  which  she  did  not  join." 

»  Arnold  v.  KemT)stea<],  Ainh.  ICO,  Scli.  &  Lef.  444. 453;  Pearson  v.  P.-ar- 

2  Ed.  'j:i«:  Vilhimil  v.  (ialway.  Anil),  son,  1  Bro.  U.  (J.  UJH,  'J<J2;  Dowsi.n   v. 

(W2.  1  H.  C.  C.  2\)2;  Wake  v.  Wake,  3  Bell.  1  Koe.  701;  Hoklicli  v.  Holdii-li, 

li.  C.  C.  2."i,  1  Ves.  Jr.  XW  L'  Y.  C.  C.  IS;  Lowes  v.  Ixjwes,  5  Hare, 

2Seo  Pitts  V.  Snowden,   1  IJ.  (J.  C.  r,01;    Hall    v.   Hill,   1   D.  &  War.  KKi; 

21)2,  n.  Wrx.d  v.   Wood,  3  Paige,  001;  Fuller 

•■•Kennedy  v,  Nedrow,  1  Dall.  41.'»,  v.  Yeates,  «  id.  '.Vin. 

41«,  421;  AdHJt  v.  Adnit,  2  JohnH.  Cli.  « Poster  v.  Cooke,  'i  R  C.  C.  347; 

(X.   Y.)   448;   Sniitli    v.    Kniskern,  4  Pearnon  v.  Pearson,  1  P.  C.  C.  291. 

Johns.  Ch.  (N.  Y.)l);  I^isher  v.  Ijislier,  •'  AllinK'  v.  Cliatlield,  42  Conn.  270. 

i:'.  Pjirh.  (N.  Y.)  100;  Hat<li  v.  P.ass<'tl,  «  Kvans  v.   I'i.ison,  0  Hicli.  (S.  C.) 

'ti  .v.  Y.  iVjiJ;  Pn-ncli  v.  Davies,  2  Vfs.  Va\.  1(;  In  w.  .Mai-lienier's  Kstat*',  MO 

Jr.   .j72;    Uiriuingliani   v.   Kirwan,  2  Pa.  St.  .jM  (1«U1),21  All.  H.  1 1 1 ;  Ci.rry 


104G 


LAW    OF    WILT.S. 


[§  T4T. 


Sho  i  j  barrod  of  her  dower  irrpspcctive  of  the  fact  that  her 
husband  has  not  disposed  of  the  hinds  under  his  will,  or  that  ho 
has  disposed  of  tliem  and  the  attempted  disposition  has  lapsed 
or  failed  because  of  its  illegality,  so  that  the  land  descends  to 
the  heir.  But  a  provision  of  real  or  personal  property  accepted 
by  the  widow  in  lieu  of  dower  will  not  prevent  her  from  assert- 
ing her  claim  to  the  share  of  the  personal  estate  she  may  be 
entitled  to  under  the  statute  of  distribution.  The  effect  of  the 
acceptance  of  the  provision  in  satisfaction  of  dower  will  not 
be  extended  to  include  any  right  or  interest  which  she  may 
have  in  the  estate  of  the  testator  except  the  right  for  which  it 
Avas  given.  So  far  as  her  claim  as  statutory  next  of  kin  to  a 
share  in  the  personal  property  is  concerned,  it  is  not  material 
whetlier  the  testator  has  made  no  disposition  whatever  of  it 
under  his  will,  or  whether  he  has  made  a  disposition  which 
lapsed  or  was  void  because  of  its  illegality.^ 


V.  Lamb,  45  Ohio  St.  203,  12  N.  E.  R. 
660;  Allen  v.  Pray,  3  Fairf.  (Maine, 
1835),  138;  Spalding  v.  Hershfield,  15 
]\Iont.  253.  39  Pac.  R.  88;  Ragsdale  v. 
Parrish,  74  Ind.  (1881),  191,  196;  Re- 
shore  V.  Little,  114  Ind.  (1887),  8,  11; 
Collins  V.  Collins,  126  Ind.  559,  563; 
Brokaw  v.  Brokaw,  41  N.  J.  Eq.  304, 
7  Atl.  R.  414;  Moore  v.  Steidell,  1  Dis- 
ney (Ohio,  1857),  281;  Fairchild  v. 
Marshall,  42  IVIinn.  14,  43  N.  W.  R,  563; 
Stokes  V.  Norwood,  44  S.  C.  424,  22  S. 
E.  K  417;  Steele  v.  Fisher,  1  Edvv. 
(N.  Y.,  1832),  435;  Palmer  v.  Voorhis, 
35  Barb.  (N.  Y.)  479;  Gibbon  v.  Gib- 
bon, 40  Ga.  562,  574,  576,  579;  Sanders 
V.  Wallace  (Ala.,  1898),  24  S.  R.  354; 
Chapin  v.  Hill,  1  R  L  446.  Under  a 
statute  providing  tliat,  if  a  testator 
shall  devise  land  to  his  wife,  such  de- 
vise shall,  unless  renounced,  be  pre- 
sumed to  be  in  lieu  of  dower  out  of 
his  reiil  estate  whei'eof  he  shall  die 
seized,  the  widow  is  not  barred  of 
dower  in  lands  which  he  has  con- 
veyed during  coverture  to  his  daugli- 
ter  for  a  nominal  consideration  by 
deeds  in  which  she  has  not  joined. 
Hall  V.  Smith,  103  Mo.  289,  15  S.  W. 
R.  621. 


1  Perkins  v.  Lord  Stamford,  2  Ves. 
Jr.  272,  581,  3  Ves.  332,  335,  492;  Bil- 
liard V.  Bin  ford,  10  Ala.  (1846),  977, 
987;  Nelson  v.  Pomeroy  (Conn.,  1898), 
29  Atl.  R.  534;  Lefevre  v.  Lefevre,  59 
N.  Y.  (1875),  434.  447;  Kempton's  Ai> 
peal,  23  Pick.  (Mass.)  1G3;  Nickerson 
V.  Bowley,  8  Met.  (Mass.)  424.  A  tes- 
tator gave  his  entire  estate  to  his 
widow,  providing  that,  if  she  should 
again  marry,  slie  should  receive  one- 
third  of  the  estate.  Hdd,  that  the 
widow  on  remarriage  was  entitled, 
as  a  distributee,  under  the  statute,  to 
one-third  of  the  personal  intestate 
estate.  Bennett  v.  Packer,  39  Atl.  R. 
(Conn.,  1898),  739.  Thus,  in  England, 
it  has  been  held  that  a  gift  to  the 
widow  "in  lieu  and  satisfaction  of 
dower  and  all  other  claims  whicli  she 
could  or  miglit  have  had  or  have  been 
entitled  to  out  of  the  testator's  es- 
tate" will  not  bar  her  right  as  the 
heir  of  a  copyhold  estate.  Norcot  v. 
Gordon,  14  Sim.  238,  258.  See  also 
Sutton  V.  Read  (111.,  1898),  51  N.  E.  R, 
801.  Wliere  the  testator  in  his  will 
directs  that  his  wife  shall  have  a 
house  for  her  residence  during  her 
life  free,  which  she  accepts,  she  can- 


§   747.]  DOCTKI^^E   OF    EQUITABLE    ELECTION.  104:7 

"Where  the  widow  is  an  heir  of  her  husband  she  is  not  barred 
as  an  heir  by  her  acceptance  of  a  devise  in  lieu  of  dower.  For 
if,  as  we  think,  the  two  capacities  are  separate  and  distinct,  she 
may,  while  taking  under  the  will  as  widow  of  the  testator,  con- 
test its  provisions  as  his  heir.  Hence  she  may,  as  heir,  totally 
overthrow  the  will,  in  which  case,  the  will  being  invalid,  there 
is  no  necessity  for  her  to  elect.  Where  the  statutes  make  her 
election  to  take  under  the  will  a  bar  both  of  her  right  of 
dower  and  her  right  to  a  distributive  share  of  the  personal 
property  of  the  testator,  they  do  not  affect  her  right  as  the 
heir  of  the  testator.  Thus,  though  she  may  have  to  make  her 
election  as  widow  within  one  year,  she  may  as  heir  have  a 
longer  period  in  which  to  contest  the  will,  and  by  securing  a 
revocation  of  the  probate  render  the  election  of  no  effect.  The 
rule  that  a  provision  accepted  in  lieu  of  dower  does  not  pre- 
vent the  widow  from  taking  as  heir  or  next  of  kin  of  the  tes- 
tator in  the  case  of  his  intestacy,  even  when  such  is  apparently 
bis  intention,  is  based  upon  the  principle  that,  in  order  to  dis- 
inherit the  heir  at  law  and,  for  the  same  reason,  the  next  of 
kin,  the  property  must  be  disposed  of  to  some  one  else.  If, 
therefore,  the  testator  is  partially  intestate  either  as  to  his  real 
£>T  personal  property,  no  reason  exists  that  one  of  the  heirs  or 
next  of  kin  should  be  deprived  of  what  tlie  will  gives  him,  and 
compelled  to  elect  between  it  and  a  gift  under  the  will,  be- 
cause the  testator  has  seen  fit  to  confer  a  bounty  upon  him. 
The  effect  of  excluding  the  widow  from  taking  her  share  in 
the  personal  estate  undisposed  of  would  be  to  increase  the 
shares  of  the  next  of  kin.^ 

Where  a  widow,  witii  a  full  knowledge  of  her  rights,  has 

not  claim  homestead.     Cowrlroy  v.  land  v.  Sutlierlaml  (Towa,  1897),  71 

Hitchcock.  10:i   III.  2(52;   "Warren  v.  N.  W.  li.  42-4;  Sutton  v.  Road  (III, 

Warren.  MM  IlL  6U.  G."j2.  189^),  51  N.  E.  K.  801.     Where  the 

'Thus  it  has  been  held  tliat  a  pift  gift  wjxs   "for  her   jointure  an<l  in 

to  a  wife  for  her  jointure  and  "  in  lieu,  lieu  of  dower  and  tliirds  at  coinnion 

of  dower  and  thinln  (it  common  law  law,"  no  rcferiMice  Ixiinjj  made  to  the 

in  all  tlic  mil  or  jn'rsiinul  rslate  "  uei-sonal  estate,  tiie  widow  waH  only 

would  not  prevent  her  from  taking;  precluded    fntm   takitig   \ior  dower, 

her  share  under  the  statute  of  dis-  Kiie  was  not  conipelleil  to  «'lect  be- 

tribution.     (lurly  v.   (Jurly,  2  Dr.  &  twecn   the   g'ft  and   wliat  she  wa.s 

Wal.  Wi,  H  CI.  A:  Fin.  7JH,     The  saniH  entitled  to  under  the  statute  of  di.s- 

was  held  in  IhxlKuwin'H  Estate,  140  tribution  as  next  of  kiiu     Colluton 

N.  Y.  421,  :rj  N.   K.  R  OGO;  Suther-  v.  Carth,  «  Sim.  19. 


1048  LAW  OF  WILLS.  [§  747. 

elected  to  take  an  estate  for  her  widowhood  in  lieu  of  dower, 
and  she  subsequently  remarries,  she  forfeits  her  estate.  Nor  can 
she  then  chiim  her  dower  either  in  the  lands  which  she  forfeits, 
or  in  any  of  the  lands  owned  by  the  testator,  even  though  he  has 
made  no  disposition  of  such  lands  in  his  will.^  Xeithcr  can 
her  personal  representatives,  under  such  circumstances,  make 
an  election  after  her  death.^ 

In  case  the  widow  elects  to  take  under  the  law  and  to  relin- 
quish the  gift  which  the  will  gives  her,  the  will,  so  far  as  tho 
provision  which  was  made  for  her  is  concerned,  is  void.  If, 
therefore,  the  testator  had  directed  that  lands  shall  be  sold  and 
the  proceeds  paid  to  her,  or  used  for  her  support  in  lieu  of 
dower,  and  she  elects  to  take  against  the  2vill,  no  conversion, 
either  actual  or  constructive,  will  take  place,  but  the  property 
'Unconverted  will  be  applied  to  compensate  the  legatees  or  dev- 
isees who  are  disappointed  by  her  election.' 

And  where  the  provision  in  the  will  for  the  wife  in  lieu  of 
dower  consists  wholly  or  in  part  of  a  life  estate,  or  an  estate 
during  widowhood  with  remainder  to  others,  and  the  widow 
elects  to  take  against  the  will,  her  action,  except  so  far  as  the 
assertion  of  her  dower  right  in  the  real  estate  givon  in  re- 
mainder will  diminish  its  value,  will  have  no  other  effect  upon 
the  interests  of  the  remaindermen  than  to  accelerate  theuh* 
Thus,  where  the  testator  gave  his  widoAV  an  estate  in  fee  in  a 
portion  of  his  property,  and  an  annuity,  and  also  annuities  to 

1  Ellis  V.  Lewis.  3  Hare,  313;  Ben-  v.  Layton,  2  Redf.  (N.  Y.)  79;  Hoover 
nett  V.  Packer  (Conn.,  1898),  39  Atl.     v.  Landis,  76  Pa,  St.  35-i. 

R.   739;    Church    v.    Bull,   2    Denio  *  Brown    v.    Hunt,   12    Heisk.   (."39 

(N.  Y.),  430.   432;  Smith  v.   Bone,  7  Tenn.,  1873),  404;  Wood  v.  Wood,  1 

Bush  (Ky.,  1870),  367;  In  re  Souders  Met.  (Ky.)  512;  Allen  v.  Hannum,  !•> 

Estate,  15  Pa.  Co.  Ct.  R  285;  O'Har-  Kan.  (1875),  625;  In  re  Schultz's  Es- 

row  V.  Whitney,  85  Ind.  140, 143;  Mc-  tate  (Mich.,  1896),  71  N.  W.  R  1079; 

Guire  v.  Brown,  41  Iowa,  650,  655;  Randall  v.  Randall  (Md.,  1897),  37  AtL 

Harmor  v.  Brown,  58  Ind.  207;  Still-  R.  209;  Portuondo's  Estate,  165  Pa. 

well  V.  Knapper,  69  Ind.  558;  post,  St.  472,  474,  39  Atl.  R.  1105;  Vance's 

note  3,  p.  1049.  Estate,  141  Pa.  St.  203;  Ferguson's  Es- 

2  Buish  V.  Dawes,  3  Rich.  (S.  C.)  tate,  138  Pa.  St.  308.  The  renuncia- 
Eq.  281;  Hurley  v.  Mclver,  21  N.  E.  tionby  the  widow  of  a  rent  charge  for 
R  325,  119  Ind.  53.  the  provision  which  the  law  makes 

3  Barnett  v.  Barnett,  1  Met.  (58  Ky.,  for  her  in  her  husband's  real  prop- 
1858),  254;  Armstrong  v.  Park,  9  eity  extinguishes  the  charge.  Arm- 
Humph.  (28  Tenn.,  1849),  195;  Brink  strong  v.  Park,  9  Humph.  (Tenn.,  1849), 

195. 


§   T-iV.]  DOCTRINE    OF    EQUITABLE    ELECTION.  104C> 

other  persons,  payable  after  the  death  of  the  widow,  and  the 
widow  renounced  and  took  her  dower,  all  the  legatees,  includ- 
ing the  residuary  legatee,  have  their  gifts  accelerated,  and  an 
immediate  distribution  of  the  estate  must  be  made.^ 

It  has  been  the  subject  of  much  discussion  whether  a  widow 
is  put  to  her  election  b}''  the  gift  of  a  life  estate  in  land,  with  a 
devise  o^  the  fee  of  the  land  to  others,  in  the  absence  of  a  di- 
rection that  the  life  estate  is  to  be  accepted  by  her  in  lieu  of 
dower.  This  inquiry  may  be  viewed  from  a  double  standpoint. 
First.  Assuming  that  the  widow  accepts  the  life  interest  de- 
vised to  her,  it  is  well  settled  that  she  is  not  debarred  from 
claiming  dower  in  the  remainder  of  the  fee  which  has  been 
devised  to  other  persons  after  her  death.-  Second.  Assuming 
that  she  has,  with  a  full  knowledge  of  her  rights,  made  an  elec- 
tion and  has  accepted  a  life  estate  which  is  determinable  on 
her  remarriage  in  lieu  of  her  dower  in  the  real  property  of  the 
testator,  and  the  remainder  of  the  real  property  of  the  testator 
is  devised  to  others,  can  she  subsequently,  on  her  forfeiture  of 
her  life  estate  by  her  remarriage,  claim  her  dower  in  the  spe- 
cific piece  of  property  in  which  she  had  a  life  estate?  There 
are  a  few  decisions  which  would  permit  the  widow  to  claim 
dower  after  she  has  forfeited  her  life  estate  by  a  remarriage.' 
But  the  majority  of  the  decisions  sustain  the  rule  that,  where  a 
widow,  with  a  full  knowledge  of  her  rights  under  the  law,  ac- 
cepts an  estate  for  life  or  widowhood  in  lieu  of  dower,  and 
subsequently  forfeits  that  estate,  she  cannot  then  claim  dower 
in  the  land  which  she  forfeits;  nor,  if  the  life  estate  was  given 
and  accepted  in  lieu  of  dower,  can  she  then  chiim  dower  in  the 
balance  of  the  lands  owned  by  the  testator,  whether  that  bal- 
ance was  or  was  not  disposed  of  by  the  will.* 

J.Slocum  V.  nagainan,  170  111.  5:W,  R  7:J9;  Smith  v.  Bone.  7  Rush  (Ky., 

T)2  N.  II  It.  332.  1870),  307:  Ollarrow  v.  Wliitiicy,  S.'S 

'-Havens  v.   Havens,  1   Samlf.  CM.  Ind.  110.  113;  Harmon  v.   Hrown.  ^S 

(N.  Y.)  3L'r>;  .S.'iritlf(.r<l  v.  Ja-kson.  10  Ind.  207;  Stihv.-ll  v.  Knapi.<T,  Oil  Iml. 

I'ai««  (N.  Y.),  200;  Mills  v.   .Mills,  2H  .'i.'i.S;  Mc(Juinf  v.  Hrown.  11  h.wa,  0."i(t. 

Hacb.  (N.  Y.)   I.-jI;  I^-wis  v.  Smith,  9  0.').');  Stark  v.    Hiinton.  Saxton  (N.  .1. 

N.  Y.  •■)02.  Kq.)  217,  221.  22.'>:  Hamiitdn  v.  Huck- 

JMittc-er    v.  Wiley.  31    Iowa.  211;  waiter.  2  Yeatc-s  (i'a.).  3.s!(,  :{U2;  In  re 

Sandford  v.  Ja/kson.  10  Paine  (N.  Y.).  Sotider's  Kstate,  Vt  I'a.  Co.  Ct.  H.  28r.; 

206;    Ix-'wis   v.  Sn\itli.  1»   N.  Y.  502;  ('awton  v  ('ji><ton,  2  Kieii.  (S.  ('.)  Kq.  1 ; 

MiIIh  v.  Mills.  2H  Ilarb.  (N.  Y.)  I.Vl.  Cunningham  v.  Shannon,  4  Rich.  Eq. 

<F:iliH  V.   Iy«'wis,  3  Hari'.  313;  \\t'n-  (S.  V.)  \'.\\  and  st'O  also  noti)  1,  page 

nett  V.  racker  (Conn.,  18'J8),  39  All.  1018. 


1050  LAW    OF    -WILLS.  [§  748. 

§  74S.  Com]  oiisjition  to  widow  wlion  devise  talieii  in  lieu 
ofdouer  fails. —  A  leiiacy  or  a  devise  given  to  the  widow  in 
lieu  of  her  dower,  and  accepted  by  her,  2^romded  the  testator 
ou-fis  real  lyroperty  at  his  death,  does  not  abate  with  other 
similar  legacies  on  a  deficiency  of  assets  to  pay  his  debts. 
Her  right  to  dower  is  regarded  as  in  the  nature  of  a  debt  of 
the  testator,  or,  more  properly  speaking,  as  a  lien  or  a  charge 
upon  the  real  property  of  the  testator,  and  the  widow's  relin- 
quishment of  dower  is  the  consideration  for  the  legacy. 

The  legacy  differs  materially  from  ordinary  legacies  which 
spring  out  of  the  bounty  of  the  testator,  and  which  are  volun- 
tary gifts.  A  legacy  in  lieu  of  dower  stands  in  the  light  of 
money  paid  by  the  estate  of  the  testator  to  discharge  a  lien 
upon  his  real  property,  and,  as  he  may  be  presumed  to  know 
how  much  its  discharge  is  Avorth,  it  is  not  material  that  the 
legacy  is  greatly  in  excess  of  what  the  dower  was  really  worth  to 
his  widow}  Hence,  if  the  property  which  she  takes  under  the 
■will  is  subsequently  sold,  or  taken  for  the  payment  of  debts  or  of 
legacies,  she  has  a  right  to  demand  that  she  shall  be  compensated 
for  what  she  has  lost  out  of  the  property  of  the  other  bene- 
ficiaries.2  A  widow  who  elects  to  accept  land  which  has 
been  devised  to  her  in  lieu  of  dower  takes  the  land  subject  to 
any  incumbrance  w^hich  was  upon  it  at  the  death  of  the  testator. 
If  the  land  devised  to  her  in  lieu  of  dower  was  subject  to  a 
mortffafre  at  the  death  of  the  testator,  she  is  not  entitled,  under 
modern  statutes,'  to  have  the  land  exonerated  from  the  mort- 
gage out  of  the  personalty  by  the  executor  unless  the  will  ex- 

1 1  Roper,  Leg.,  p.  433;  Howard  v.  Tliomas  v.  Wood,  1  Md.  Ch.  296,  300. 

Francis,  30  N.  J.  Eq.  444,  1  Am.  Pro.  If  a  widow  accepts  a  provision  whicli 

Rep.  320,324;  Thompson  v.  Egbert,  fails  for  illegality,  equity  will  relieve 

17  N.  J.  L.  459;  Williamson  r.  Will-  and  permit  her  to  claim  her  dower, 

iamson,  1  Paige  (N.  Y.),  298,  305;  Pol-  Hone  v.  Van  Schaick,  7Paige  (N.  Y.), 

lard  V.   Pollard,  1   Allen  (83  Mass.,  221,  223.     On   the  other  hand  it  is 

18G1),  490,  491;  Hubbard  v.  Hubbard,  held  that  land  taken  in  lieu  of  dower 

6  Met.  (47  Mass.,  1843),  50;  Heath  v.  is  subject  to  pay  its  proportion  of 
Dendy,  1  Russ.  543.  See  also  cases  the  debts  of  the  testator.  Inge  v. 
cited,  p.  537,  note  1.  Boardman,  2  Ala.  331  (1841);  Bray  v. 

-'  Dunning  v.  Dunning.  82  Hun,  462,  Neill,  21  N.  J.  Eq.  (1871),  343;  Harri- 

31  N.  Y.  S.  719;  Hone  v.  Van  Schaick,  son  v.  Taylor  (Ky..  18;)9).  51  S.  W.  R. 

7  Paige  (N.  Y.,  1838).  221,  20  Wend.  193;  Stevenson  v.  Brown,  4  N.  J.  Eq. 
(N.  Y.)  564;  Williamson  v.  William-  503,  504. 

son,  1  Paige  (N.  Y.,  1828),  298,  305;        ^  Ante,i^.  531. 
Gist  V.  Cattell,  2  Des.  (S.  C.)  Eq.  53; 


§  740.]  DOCTEIXE    OF    EQUITABLE    ELECTION.  1051 

pressly  so  directs.  The  fact  that  the  land  was  mortgaged 
before  marriage,  and  that  there  is  a  general  direction  to  pay 
debt:;,  does  not  alter  the  rulc.^  If  the  widow  elects  to  taiie 
under  the  will  she  takes  subject  to  all  charges  under  the  will.- 
And  she  must  pay  all  taxes  and  charges  upon  the  property  de- 
vised to  her  in  lieu  of  dower.^ 

§  719.  Statutory  proTisions  regulating  the  widow's  elec- 
tion.—  In  some  of  the  states  it  is  now  provided  by  statute  that 
every  testamentary  provision  made  by  the  testator  for  his 
widoAv  shall  be  presumed  to  be  intended  to  be  given  in  lieu  of 
her  dower,  unless  it  shall  appear  from  the  will  expressly,  or  by 
necessary  implication,  that  she  is  to  take  both  the  testamentary 
gift  and  what  she  may  be  entitled  to  as  dower  under  the  law. 
In  those  states  where  the  statute  provides  that  a  devise  of  land 
by  the  testator  to  his  widow  shall  be  presumed  to  be  given  m 
lieu  of  dower  where  the  will  is  silent  in  this  respect,  the  pre- 
sumption does  not  apply  to  a  gift  of  personal  propert}^,  and  if 
the  provision  in  the  will  for  the  widow  consists  of  personalty 
alone  the  ordinary  presumption  applies,  and  unless  the  hequest 
is  expressly  or  by  necessary  implication  hi,  lieu  of  doicer  the 
widow  may  take  the  personal  property  bequeathed  and  may 
also  claim  dower  in  tae  land  of  the  testator,^  iJut  in  most  of 
the  states  in  which  this  statutory  presumption  in  favor  of  an 
election  is  recognized,  the  rule  is  applicable  not  only  to  devises 
of  land  to  the  widow  of  the  testator,  but  to  gifts  of  personal 
property  to  her  as  well.  AVhere  the  will  is  silent  the  presump- 
tion arises  under  the  statut.;  that  the  testator  meant,  by  the 
testamentary  provision,  that  his  widow  should  elect  between 
her  dower  and  what  she  is  to  take  by  the  operation  of  his  will, 
whether  the  latter  consists  of  real  or  [)ci'.s()n;d  jji-operty.* 

•Meyer  v.  Cjihen,  111   N.  Y.  270.  man,  7  Ga.  20;  Rainos  v.  Corbiii.  24 

273  (IHMM),  \>i  N.  E.  li.  «o2.     Tliis  sub-  Gu.  185;  Woitlieu  v.  Toarson,  ;j;j  tJa. 

ject  is  fully  (lis^usseil  an^c,  ^  :W0.  SS.'i;   Clayton  v.  Aikiri,  38  Ga.  320; 

2  Kline's  Appeal,  117  Ta.  St.  (18^7),  Martincj  v.  Norris,  »l  M<>.  4Gr>.  3  S.  W. 

139.  I{.  8I»;  PeinlxTton  v.  Peinberton.  29 

»  Warren  v.  Warren.  \\H  111.  (IS93),  Mo.  4l)«;  Morgan  v,  MorK'an.  41  N.  J. 

641,  6.'>3;    IVyton   v.  JelFrie-s,  .lu  111.  Ya\.  235;   Van  ATsdalo  v.  Van  An*- 

(1W(I).  143;  Whyte  v.  Mayor.  2  Swan  dale,  17  N.  J.  L.  lOl. 

(32  T»'nn..  lM.-,2).  :}(;j;   Honl.'iibeck  v.  Mlillijinl   v.   Hiiifonl,   10   Ala.  077, 

Cr'.nkriKlit.  23  .v.  .J.  Bj. -107.  91)0;    .M.(;ratli    v.   .McCiratli,  38   Jn.i. 

♦I'urnplin'V  V.  I'liniplirey,  52  Ark.  2M5;    Itrown    v.    I'ltiiey.   39   111.   4(W; 

193,  12  S.  W.  li.  390;  Tooke  v.  Ilardo-  Mo\n  bry  v.  .Mou  bry, OIUL 383;  Gauch 


ior.3 


LAW    CF   WILLS. 


[§  T49. 


In  A'cry  many  of  the  states  it  is  now  provided  by  statute 
that  unless  the  widow  of  the  testator  sliail  within  one  year 
after  his  death  renounce  the  provisions  made  for  her  in  tl)o 
will,  whether  or  not  such  gift  is  expressly  stated  to  be  in  lieu 
of  dov.'er,  by  some  act  or  writin^^  clearly  manifesting  an  inten- 
tion to  make  an  election,  she  Avill  be  conclusively  presumed  to 
have  taken  under  the  will.^  The  character  of  the  acts,  or  of 
the  writing,  where  a  writing  is  required  to  manifest  an  inten- 
tion to  elect,  depends  wholly  upon  the  provisions  of  the  stat- 
utes, which  should  be  consulted.  The  statutes  are  to  receive  a 
reasonable  construction  with  the  view  of  protecting  the  rights 
of  the  widow.  In  case  the  statute  fixes  no  time  within  which 
an  election  is  to  be  made,  the  widow  must  have  a  reasonable 
time  to  decide,  depending  upon  the  circumstances  of  the  case.'- 
The  existence  of  a  controversy  involving  the  validity  of  the 
w^ill,  or  the  construction  of  a  provision  referring  to  her  dower, 
is  a  good  reason  for  extending  the  time  within  which  she  is 


V.  St.  Louis  Ins.  Co.,  88  111.  255;  Cow- 
drey  V.  Hitchcock,  113  111.^263;  Stunz 
T.  Stunz.  113  111.  (1885),  210,  23  N.  E. 
R  407;  Warren  v.  Warren,  30  N,  E.  R 
647,  148  111.  650;  Allen  v.  Hannum, 
15  Kan.  625;  Dow  v.  Dow,  36  Me.  211; 
Ha'^tings  v.  Clifford,  32  Me.  132; 
Pratt  V.  Felton,  4  Cush.  (]Mass.)  174; 
Eeed  v.  Dickerman,  12  Pick.  (Mass.) 
146;  Atlierton  v,  Corlis.  101  Mass.  40, 
44;  Delay  v.  Vinal,  1  Met.  (Mass.)  57; 
Gough  V.  Manning,  28  Md.  347,  366; 
Hinckley  v.  House  of  Refuge,  40  Md. 
461 ;  Jackson's  Appeal,  126  Pa.  St.  105, 
17  Atl.  R  335;  Craven  v.  Craven,  2 
Dev.  Eq.  (S.  C.)  338;  Hair  v.  Gold- 
smith, 22  S.  C.  566;  Luigart  v.;Ripley, 
19  Ohio  St.  24;  Davis  v.  Davis,  11 
Ohio  St.  386;  Bowen  v.  Bowen,  31 
Ohio  St.  164;  Anderson's  Appeal,  36 
Pa.  St.  476;  Reed  v.  Reed,  9  Watts 
(Pa.),  263;  Cauffman  v.  Cauffman,  17 
S.  &  R  (Pa.)  16:  Malone  v.  Majors,  8 
Humph.  (Tenn.)  577,  579;  Demoss  v. 
Demoss,  7  Coldw.  (Tenn.)  256,  258. 

1  Sanders  v.  Wallace  (Ala.,  1898),  24 
S.  R  354;  Crow  v.  Powers,  19  Ark. 
(1858),  424;  Pumphrey  v.  Pumphrey, 


52  Ark.  193,  12  S.  W.  R.  390;  Lord  v. 
Lord,  23  Conn.  (1854),  327;  Cow.hey 
V.  Hitchcock,  113  111.  262;  Stunz  v. 
Stunz,  113  111.  (1885),  210;  Warren  v. 
Vv^arren,  36  N.  E.  R  647,  148  111.  650; 
Arcliibald  v.  Long,  144  Ind.  451,  43  N. 
E.  R  439;  Fosher  v.  Guilliams,  120 
Ind.  172, 174;  Carper  v.  Crowl,  149  111. 
(1894),  465,  474,  36  N.  E.  R  1040;  Pratt 
v.  Felton,  4  Cush.  (Mass.),  174:  Hast- 
ings V.  Clifford,  32  Me.  (1850),  132; 
Dougherty  v.  Barnes,  64  Mo.  (1876). 
159;  Grant  v.  Henley,  64  Mo.  102: 
Brad  hurst  v.  Field,  57  Hun,  587,  10 
N.  Y.  S.  482;  Sullivan  v.  ]\IcCann,  2 
N.  Y.  S.  193;  Collins  v.  Carmen,  5  :\r(l. 
(1854),  503;  Gough  v.  Manning,  26  Md. 
(1866),  347;  Chadwick  v.  Tatem,  9 
Mont.  354,  23  Pac.  R.  729;  Appeal  of 
Jackson,  126  Pa,  St.  105,  17  Atl.  R 
535;  Sherman  v.  Baker  (R  L,  1898), 
40  Atl.  R  765;  Blunt  v.  Gee,  5  Call 
(Va.),  481;  Noel  v.  Garrett,  4  Call 
(Va.),  92;  Albright  v.  Albright,  70 
W^is.  528,  532. 

2  Reed  v.  Dickermann,  12  Pick. 
(Mass.)  149;  Delay  v.  Vinal,  1  Met. 
(Mass.)  157. 


§   749.]  DOCTRIXE    OF    EQUITABLE    ELECTION.  1053 

to  raakc  up  her  miml.^  In  some  cases  it  has  been  held  that  if 
a  statute  requires  that  a  widow's  election  shall  be  in  writing, 
her  acts  and  oral  statements  not  of  record  will  not  suffice.^ 
Elsewhere  it  appears  that  although  the  statute  provides  for 
a  formal  election  by  the  widow  whether  she  will  take  under 
the  will  of  her  deceased  husband,  in  lieu  of  the  share  which 
the  law  gives  her,  an  election  ma}^  be  made  by  acts  in  pais; 
and  hence  the  record  is  not  the  only  proof  of  such  election. 
The  proof  of  an  implied  election  by  a  widow  whether  she  will 
take  under  her  husbiind's  will  must  be  clear  and  satisfactory; 
but  a  deliberate  and  intelligent  choice  is  deemed  to  be  as  bind- 
ing as  though  it  were  formally  made.'  But  the  filing  of  an  in- 
strument, when  it  is  not  required  by  a  statute,  is  not  binding 
upon  her.*  So  far  as  the  formal  character  of  the  instrument 
to  be  filed  is  concerned,  the  statute  should  be  strictly  followed.* 
Ordinarily  the  writing  should  be  acknowledged  by  the  widow.® 
Her  consent  to  take  under  the  will  when  filed  becomes  a  part 
of  the  judicial  records,  and  cannot  be  recalled  unless  under  an 
order  of  the  court.^ 

A  statute  which  provides  that  a  devise  of  land  by  the  testa- 
tor to  his  wife  shall  be  presumed  to  be  in  lieu  of  dower  does 
not  apply  to  an  unconditional  gift  of  personal  propert3^'*  But 
a  statute  which  provides  expressly  that  a  gift  contained  in  a 
will  shall  be  presumed  to  be  in  lieu  of  the  "  widow's  share," 
and  that  she  will  also  be  presumed  to  have  taken  under  the 
will  unless  she  files  her  dissent  to  its  provisions  in  writing,  is 
ap[)licable  to  her  distributive  share.^  The  filing  of  a  written 
renunciation  is  of  course  unnecessary  where  the  testator  has 

J  Church  V.  Ackennann,  1  N.  J.  Va\.  «  Fosher  v.  Guilliams,  120  Iml.  172, 

(1H31),  40;  Pindell  v.  Pindell,   10  Md.  175. 

6:i7.  "  Colos  V.  T.TivlI,  102  111.  1(;7,  -14  N. 

MVhited  V.Pearson,  00  lowii.  488,  E.  R  :}!>!;    lialdozior  v.   Uaynos,  57 

5S  N.  W.  H.  :K);  An-hihuld  v.  Lc^ng,  Iowa.  08:j,  C8ri.     The  presumption  is 

144  Ind.  4."il,  4.'>4.  that  the  notice  of  an  eli'ftion  to  take 

'  I{<iville  V.  iJuhach,  57  Pac.  U.  MS  under  the  will,  found  on  file,  has  Im'cu 

(Kan.,  IH'J'J).  le);;illy  atid  properly  liled.     IJeeni  v. 

Mliehards   v.    Ri<;hards,   00    Iowa,  Kiml.erly,72  Wis.  ;m:}.  :J0  N.  W.  II.  542. 

<K)0.  58  N.  W.  11.  020.  '^  Martini)  v.  Norris,  01  Mo.  405,  3  S. 

'■•  \)r.i\*t'T  V.  Morris.  VM  Iml.  100,  M  W.  \\.  HIO. 

N.  K.  H.  714;    (Jullett  v.   Karl.-y.   104  ".M<(;iieo  v.  .Stephr-ns,  8;i  Ala.  400, 

III.  500,  45  N.  H  It.  072;  CraiK  v.  Con-  .'J  .S.  It.  808;  NN'ard  v.  Worll,  50  Iowl^ 

ov«r,  80  hnva,  :J55.  45  N.  W.  R  802.  407. 


1054  LAW   OF   AVII.LS.  [§  750. 

given  his  ■whole  estate  to  his  widow  In-  will.'  The  widow  will 
be  presumed  to  be  acquainted  with  the  statutes  requiring  her 
election,  and  it  is  not  the  duty  of  the  executor  to  notify  the 
widow  of  the  provisions  of  the  Avill  in  her  favor,-  unless  the 
instrument  gives  a  longer  period  to  elect  than  is  allowed  by 
the  statute.''  In  case  of  the  death  of  the  widow  hefore  filing 
an  election  as  required  by  the  statute,  her  right  to  elect  will 
not  devolve  upon  her  heir  or  personal  representative.  She 
"vvill  be  deemed  to  have  elected  to  take  under  the  will,  though, 
as  matter  of  fact,  she  had  shown  an  intention  to  take  under  the 
law  by  entering  into  possession.'* 

§  750.  Election  in  relation  to  devises  of  comnninity  prop- 
erty.—  In  the  states  of  Arizona,  California,  Louisiana,  New 
Mexico,  Texas  and  AVashington  the  law  of  community  prop- 
erty, applied  to  property  owned  by  the  husband  and  wife,  pre- 
vails. In  those  states  there  is  no  estate  in  dower,  nor  does 
the  husband's  estate  by  the  curtesy  exist.  All  property,  real 
and  personal,  owned  by  husband  or  wife  is  divided  into  sepa- 
rate property  and  community  property. 

Separate  property  is  that  property  which  either  party  to  the 
marriage  relation  owned  individually  before  the  marriage,  or 
which  either  party  acquires  during  the  existence  of  the  mar- 
riage, whether  by  gift,  bequest,  devise  or  descent.  All  such 
property  with  its  rents,  profits  and  income,  belonging  either  to 
the  wife  or  the  husband,  is  separate  property.  All  other  prop- 
erty which  is  acquired  by  the  husband  or  the  wife  during  the 
existence  of  the  marriage  in  any  manner  which  differs  from 
the  above  is  community  property.  The  presumption  is  that  all 
property  is  community  property,  though  this  presumption  may 
be  overcome  by  clear  proof.^ 

During  the  life  of  the  parties  to  the  marriage  the  husband 
possesses  the  legal  right  to  exercise  a  complete  control  and  su- 

1  Bulf  er  V.  "Willigrod,  71  Iowa,  620,  225.   Property  acquired  by  a  man  dur- 

33  N.  W.  R  136.  ing  his  cohabitation  with  a  woman 

-  Price  V.  Woodford,  43    Mo.  247 ;  whom  he  afterwards  marries  is  sepa- 

Palmer  v.  Voorhis,  35  Barb.  (N.  Y.)  rate  property.    McLaughlin's  Estate, 

479.  30  Pac.  R  651,  4  Wasli.  570;  Kelly  v. 

3  Gale  V.  Gale,  48  Dl.  471.  Kitsap  Co.  (Wash.,  1898),  32  Pac.  R. 

<McGrath  V.  McGrath,38  Ala.246;  554;  Hatch  v.  Ferguson,  57  Fed.  R. 
Fosher  v.  Guilliams,  120  Ind.  172,  174.  966,  971.  As  regards  the  power  to  de- 
See  also  §  743.  vise  community  property,  see  ante, 

s  Smith  V.  Smith,  12  CaL  (1859),  216,  §  58. 


§  750.]  DOCTRINE    OF   EQUITABLE    ELECTION.  1055 

pervision  over  the  whole  of  the  community  property.  On  the 
death  of  either  party  one-half  of  the  community  property  goes 
to  the  survivor  absolutely  as  separate  property,  and  the  other 
half  to  the  heirs  or  next  of  kin  of  the  deceased.  The  husband, 
though  he  may  control  all  the  community  property  icfiile  he 
Z/i'^.5,  cannot  dispose  of  more  than  one-half  of  it  hy  his  will;  the 
rights  of  the  survivor  in  the  community  cannot  be  destroyed; 
and  the  will,  though  purporting  to  dispose  of  all  the  property 
of  the  testator,  will  not  be  permitted  to  operate  so  as  to  deprive 
his  wife  of  her  share  in  the  common  property.*  The  usual 
presumption,  that  the  testator  by  general  words  intends  to  de- 
vise only  his  own  property,  will  be  recognized  where  he  is  the 
owner  of  community  property,  and  every  disposition  of  his  es- 
tate in  general  terms  will  be  construed  to  include  only  his  half 
of  the  common  property,  over  which  alone  by  the  law  he  has 
the  absolute  power  of  disposal  b}'-  will.  Where  there  is  no  evi- 
dence of  an  intention  on  the  part  of  the  testator  sufficiently 
strong  to  overcome  this  presumption,  the  wife  is  not  put  to  her 
election.  She  may  take  what  the  law  gives  her  in  the  com- 
munity property  —  that  is,  one-half  of  it,  and  als  j  what  her  hus- 
band gives  her  in  the  will.^  A  will  disposing  of  "  all  the  estate 
I  now  own  and  possess  "  does  not  show  an  intent  on  the  part 
of  the  testator  to  dispose  of  his  wife's  interest  in  the  commu- 
nity property.'  So  also  a  provision  of  a  will  of  a  husband  that 
after  the  widow's  death  the  executor  should,  if  necessary,  rent 
out  the  farm  to  raise  money  to  pay  spec i lie  legacies,  does  not 
show  an  intention  to  devise  the  farm  as  an  entirety,  so  as  to  put 
the  widow  to  an  election  whether  she  will  accept  a  life  estate 

1  Beard  v.   Knox,  5   Cal   252,  256  Estate,  52  Cal.  058:  (iilinore's  Estate, 

(1855);  King  v.  LaKruiKe.  50  Cal.  ^28;  81  Cal.  240,  242,  22  Par.  R.  U55:  Smith 

Buchanan's  Estate,  8  Cal.  507.  5C0,  v.    Butler,   85  Tex.   (1892),    120.  l;{0: 

510;  .Smith  v.  Smith,  12  Cal.  216,  225;  Crosson  v.  Dwyer.  9  Tex.  Civ.  Ai)p. 

Burton  v.  Lies,  21  Cal.  87;  Scott  v.  482,489;  Rogers  v.  Trevathan,  07  Tex. 

Ward,  13   CaL  (1859),    159.  469,  470;  (1887),  400,  409;  Carroll  v.  Carroll,  20 

Broa<l  V.  Murray,  41  Cal.  229;  Payne  Tex.  7:n.  746;  Morrison  v.  Bowman, 

V.  Payne,  8  CaL  292.  :J01;  Walker  v.  29  Cal.;«7.H48;  li«'ar<l  v.  Knox,  5  Cal. 

Howard,  ;M  Tex.   478,  500;  Conn    v.  252,  257;  Chase  v.  Briggs.  'i\  S.  \V.  li. 

J)aviH,:{:JTex.  20:5,209;  Mayo  V.Tudor,  76,  77  (Tex..  IHKH);  Carroll   v.  Car-oil, 

74  Tex.  471,  473,  74  Cal.  98,  102.  20  Tex.  743;  Moses  v.  Helsley,  00  Tex. 

2No«i  V.  S[»ivalo,  54  CaL  (18H0),  207;  4:55.     C/.  Kyn>'s  Estiitc.  7  Wash.  291, 

Hilvey'H   E«Uite.  44   CaL   (1872),  210;  31  Par.  R.  KU. 

St<!wart'H   I':Htate,  74  Cal.  98;   Payne  Mlaley   v.  (iatewwd,  74  Tex.  281 

V.  Payne,  18  CaL  (1801),  202, 301 ;  Frey's  (1889),  12  S.  W.  R.  25. 


105G  LAW    OF    -WILLS.  [§  Y51. 

in  the  entire  tract,  as  devised  to  her,  or  renounce  the  will  and 
retain  her  community  interest.^  But  where  the  husband  devises 
the  wife's  share  of  the  community  property  to  a  third  person, 
and  in  the  same  will  gives  lier  a  benefit,  which,  cither  by  the 
express  terms  of  the  will  or  by  necessary  implication,  is  to  bo 
taken  in  lieu  of  her  share  of  and  interest  in  the  community 
])roperty,  the  wife  is  put  to  her  election.  The  intention  to  re- 
quire an  election  must  be  clearly  expressed.- 

Any  act  upon  the  part  of  the  widow  clearly  manifesting  her 
satisfaction  with  the  provisions  which  have  been  made  for  her 
in  the  will,  in  lieu  of  her  interest  in  the  common  propert}--,  will 
constitute  an  election  to  take  under  the  will.*  A  will  which, 
in  disposing  of  community  property,  states  that  it  is  made  with 
full  knowledge  of  the  property  rights  of  the  husband  and  wife, 
and  with  the  knowledge  and  consent  of  the  wife,  shows  the 
testator  knows  of  the  law  governing  the  interests  of  man  and 
wife  in  community  property,  and  that;  he  meant  to  dispose  of 
the  wife's  interest  in  a  way  which  would  not  be  valid  with- 
out her  consent.  The  conveyance  by  the  widow  of  property 
given  her  by  this  will  is  an  election  to  take  under  the  will.* 
A  will  wiiich,  after  stating  that  all  his  property  is  commu- 
nity property,  bequeaths  such  property  in  the  following  terms, 
^'  An  undivided  one-half  interest  in  said  property,  leaving  the 
remaining  undivided  one-half  of  said  community  property  to 
my  wife,"  though  requesting  her  to  dispose  of  her  property  to 
the  children,  leaves  her  property  undisposed  of  by  the  will.'^ 

§  751.  Election  in  the  case  of  a  devise  of  the  homestead. 
The  statutes  securing  a  homestead  exemption  to  the  head  of  a 
family  create  an  interest  in  land  which  inures  to  the  heirs,  or 
to  the  widow  and  children  of  the  person  who  has  enjoyed  the 
exemption,  upon  his  death.     The  person  claiming  a  homestead 

1  Gibony  v.  Hutcheson,  50  S.  W.  R.  and  she  will  be  put  to  her  election. 
648  (Tex.,  1899).  Estate  of  Stewart,  74  Cal.  98. 

2  Smith's  Estate,  38  PacR.  950, 9ol;  » Estate  of  Stewart,  74  Cal.  98,  15 
Cook  V.  Trust  Co.  (Ky.,  1898),  47  S.  W.  Pac.  R.  445;  Rogers  v.  Trevatlian,  G7 
R.  325.  Thus,  where  the  testator  de-  Tex.  406,  409,  3  S.  W.  R.  509;  Smith 
vises  one-half  of  all  his  estate  to  his  v.  Butler,  85  Tex.  126, 131,  19  S.  W.  R. 
wife,  and  directs  the  balance  to  be  1083;  Lee  v.  McFarland  (Tex.,  1898), 
divided  up,  it  will  be  presumed  that  46  S.  W.  R  281. 

he  intended  to  deal  witli  his  wife's  ■*  Smitli's  Estate,  38  Pac.  R.  950,951. 
interest  in  the  community  property,        ^  in  re  Williamson's  Estate,  75  CaU 

317,  318,  17  Pac.  R.  221. 


§  751.]  DOCTRINE    OF   EQUITABLE   ELECTION".-  1057 

has,  as  a  rule,  no  power  to  devise  it  awaj  from  the  person  or 
persons  on  whom  the  law  casts  it  at  his  decease.  The  home- 
stead which  is  exempted  by  the  statute  will  not  pass  under  a 
general  or  residuary  devise  of  the  estate  of  the  testator,  but 
will,  on  his  death,  go  to  those  persons  mentioned  in  the  stat- 
ute.^ Where  the  testator  devises  property,  either  real  or  per- 
sonal, to  those  who,  under  the  statute,  are  entitled  to  succeed 
to  the  homestead,  and  by  the  same  will  devises  the  homestead 
to  a  third  person,  a  case  for  an  election  between  the  inconsist- 
ent benefits  arises.  The  intention  to  devise  the  homestead  will 
not  be  presumed.  The  intention  to  make  such  an  election  in- 
cumbent upon  such  persons  must,  as  in  all  cases,  be  clearly 
nianifested.- 

Thus,  where  the  testator  devises  his  estate,  consisting  of  his 
homestead  and  land  and  certain  personal  property,  to  his  widow 
for  life,  with  a  power  of  disposal  if  it  is  required  for  her  sup- 
port, and  a  remainder  to  a  stranger;'  or  where  the  testator 
gives  his  widow  personal  property  and  the  use  of  his  home 
place  and  household  goods  for  life,  on  condition  that  she  should 
not  rent  it,  the  same  to  be  in  lieu  of  dower  ;^  or  where  he  de- 
vises "  a  suitable  house  for  her  residence  during  her  life,"  and 
she  elects  to  take  the  house  in  which  she  and  the  testator  had 
lived,'  an  election  must  be  made  by  her  between  the  property 
which  was  given  by  the  will  and  her  homestead  privilege.  If 
the  widow  shall  renounce  the  provisions  of  the  will  and  shall 
elect  to  take  the  homestead,  so  that  the  devise  of  the  home- 
stead to  another  person  shall  fail,  the  devisee  of  the  homestead 
lias  his  remedy  against  the  estate.* 

1  Scull  V.  Beatty,  27  Fla.  420  (1891),  nVarreu  v.  Warren,  36  N.  E.  R, 

9S.  R4;  Bell  v.  Bell,  84  Alii.  04n8«7),  611,  148  111.  641. 

4  a  R  189;  Pratt  v.  Pratt,  161  Mjiss.  6  Gainer  v.  Gates  (Iowa),  .34  N.  W. 

276,  37  N.  E.  R  43.'}.     And  bco  also  R  798.   Where  land  beion^'inf,'  to  tlio 

lieok  V.  Seward  (Cul.),  lb  Pac.  R  6o0;  wife  and  occupied  as  a  honiestead  is 

and  ante,  %  59.  dtnised  by  her  to  the  hiishand,  suh- 

-  Schorr  v.  P^tlin;^,  124  Mo.  42  (1894),  jwt  to  an  antniity,  and  the  hushand 

27  S.  W.  R  39");  llaby  v.  Fuoh,  2'>  S.  occujiies  the  land  for  si-x  years,  hu 

W.   R    1121:   Ilfhii   V.   I^ggott  (Mo.,  will  bo  dci'incMl  to  have  lakm  under 

1H99),  48  S.  W.  R  G7.J.  the*  will  and  cannot  refuse  to   pay 

•  In  re  Well's  lintate,  63  Vt.  116,  21  the  annuity.  Fry  v.  Mudiaou.  12  N. 
All.  R  270.  K.  U.  774,  159  IIL  21 L 

*  In  re  Blackmcr's  Eatato.OG  Vt.  40, 
2«  At!.  R  419. 

67 


1058  LAW   OF   WILLS.  [§  752. 

Tlic  statutory  rule  which  obtains  in  some  states,  forbidding  the 
alienation  of  a  homestead,  occupied  as  such  by  husband  and  wife, 
by  cither  without  the  consent  of  the  other,  has  been  regarded, 
in  one  case  at  least,  as  not  applicable  to  a  devise  of  the  interest  of 
either  the  hvshand  or  the  ivife.  It  is  said  that  an  execution  of  a 
will  is  not  an  alienation,  as  it  does  not  pass  any  interest  or  title 
in  the  homestead.  The  will  is  revocable  until  the  death  of  its 
maker,  and  is  effectuated  by  that  event  and  by  the  operation 
of  the  statute  of  wills.  At  the  death  of  the  testator  the  land 
ceases  to  be  occupied  as  a  homestead,  and  no  reason  exists, 
either  in  law  or  public  policy,  that  prevents  him  from  disposing 
of  his  interest  by  will  when  he  can  no  longer  enjoy  it,  though, 
of  course,  he  has  no  power  to  dispose  of  the  interest  of  the 
other.  His  devisee  takes  it  subject  to  the  statutory  rights  of 
the  surviving  spouse  or  of  the  children.^ 

§  752.  Election  in  the  case  of  a  bequest  of  the  proceeds 
of  an  insurance  policy. —  AVhere  the  testator  has  his  life  in- 
sured for  the  benefit  of  A.  loithout  poioer  of  revocation  in  tho 
testator,  or  of  designating  a  new  beneficiary  by  his  will,  awl 
he  devises  property  of  his  own  to  A.,  and  in  the  same  will  de- 
vises the  proceeds  of  the  policy,  which  is  payable  to  A.,  to  an- 
other, A.  is  bound  to  elect  —  he  cannot  claim  the  devise  and 
the  proceeds  of  the  policy.  Thus,  where  a  testator  gave  his 
real  estate  to  his  children  and  devised  to  another  the  proceeds 
of  a  policy  payable  to  them,  the  children,  on  accepting  tho 
devise,  elected  to  relinquish  the  proceeds  of  the  policy.-  And 
in  such  cases,  where  the  proceeds  of  the  insurance  policy  greatly 
exceed  in  value  the  legacy  to  the  beneficiary  named  in  it,  he  is 
not  only  under  an  obligation  to  elect,  but  he  has  the  right  to 
do  so  for  his  own  protection. 

The  principle  that  an  occasion  for  an  election  arisos  only  in 
a  case  where  the  testator  gives  away  the  interest  of  another  is 
applicable  to  a  bequest  of  the  proceeds  of  an  insurance  policy. 

iVining  v.  "Wallace,  40  Kan.  609,  Kan.   590;  Martindale   v.  Smith,  31 

613,  614.     The  testator  may  by  stat-  Kan.  270,  273;  Myers  v.  Myers,  89  Ky. 

ute,  in  some  cases,  dispose  of  his  home-  442,  12  S.  W.  E,  933. 
stead  by  will  if  he  has  no  cliildren,        2Hartwig  v.  Schiefer  (Ind.),  46  N. 

but  it  will  be  still  subject  to  dower.  E.  R.  75;  42  N.  E.  R.  471,  affirmed; 

Pumell  V.  Reed  (Fla.),  13  S.  R  831.  Van  Schaack  v.  Leonard,  164  111.  602, 

Or  he  may  devise  it  to  his  widow  607,  45  N.  E.  R  982;  Huhlien  v,  Huh- 

and  children.     Barry  v.   Barry,   15  lien,  87  Ky.  247,  253,  8  S.  W.  R.  260. 


§  753.]  DOCTRINE    OF   EQUITABLE   ELECTION.  lU59 

It  is  only  when  we  assume  that  the  specific  beneficiary  named 
has,  during  the  life  or  at  the  death  of  the  testator,  a  vested 
right  to  the  insurance  money  in  the  nature  of  property  of  which 
he  cannot  be  divested,  that  he  has  the  right  to  elect  between  it 
and  what  the  will  gives  him.'  But  when,  according  to  the  gen- 
eral rule,  the  interest  of  the  beneficiary  in  an  insurance  policy 
is  regarded,  not  as  a  vested  right  or  estate  in  property,  but 
rather  as  a  mere  expectation  or  possibility  on  his  part  of  re- 
ceiving something  on  the  death  of  the  insured,  assimilating  to 
the  expectation  of  a  legatee  under  a  will,  no  case  for  an  elec- 
tion arises  when  the  person  who  is  insured  disposes  of  the  pro- 
ceeds of  the  policy  by  a  will  in  which  he  gives  the  beneficiary 
a  legacy ;  for  the  main  requisite  to  an  election,  that  the  testa- 
tor shall  by  will  dispose  of  the  property  of  another,  is  absent. 
The  beneficiary  named  in  the  policy  takes  the  legacy  given  him, 
and  the  bequest  of  the  insurance  money  operates  under  the 
will,  and  both  legatees  take  under  the  Avill  according  to  the  ex- 
press intention  of  the  testator. 

The  intention  on  the  part  of  the  testator  to  put  the  benefi- 
ciary under  the  insurance  policy  to  an  election  must  be  mani- 
fested expressly  or  by  necessary  implication  on  the  face  of  the 
will,  as  in  other  cases  where  an  election  between  inconsistent 
benefits  is  required.  Accordingly  in  a  case  where  the  testator 
having  his  life  insured  for  the  benefit  of  his  widow  bequeathed 
her  a  large  sum  of  money,  ^'-  ijidiulhuj  the  jyi'oceeds  of  all  insnr- 
ance  upon  his  life  payable  to  her  or  otherwise,''^  expressly  in  lieu 
ff  rloicer,  and  directed  that  siie  be  paid  a  certain  income  dur- 
ing her  life  by  the  trustees,  and  gave  the  suri)lus  income  and 
all  the  residue  of  his  estate  to  others,  the  court  held  that  tho 
widow,  by  taking  under  the  will  the  provision  for  her  in  lien  of 
dower,  was  not  under  the  necessity  of  relin(|uishing  tho  proceeds 
of  an  insurance  policy  payable  to  her  as  a  bent'llciary.-' 

§  I'i'.i.  The  husbaiHl's  rii;ht  to  elect  as  respects  his  cur- 
tesy.—  At  tln!  coiiiiiKjn  law  an  estate  i)y  the  curtesy  was  :mi 
int^jrest  to  which  Urn  husbiitid  was  entithMJ,  upon  tho  (h'alh  of 
liis  wife,  in  lands  or  t(.'n<'ments  of  which  she  was  seized  in  pos- 

'  P'or  nxamplPH  of  Hur;h  cases  kco  1(»7.    TIm>  nilfs  ;,'<lv<•I•rlin^J  tlie  disposi- 

antf,  |>.  72,  not«  'J.  tion  by  will  of  tho  ihoccoiIh  of  iiisnr 

'■'In   re  IhiydfrrH  ICMtato,  n  N.   Y.  uiicfi  |i(ilici(.'.s  iiru  t'X|)liiino(i  ia  full  in 

Hupp.  815,  Ml,  7  N.  Y.  S.  ai3,  '>  1  Hun,  ^;  W,  „nfe. 


1000  LAW    OF   -WILLS.  [§  753. 

session,  in  fee  simple  or  in  fee  tail  during  their  coverture,  pro- 
viding always  that  she  had  lawful  issue  born  living  which 
might  by  possibility  inherit  that  estate  as  heir  to  the  wife,  lie 
took,  on  her  death,  an  estate  for  life  by  the  curtesy.^  This 
right  or  estate  of  curtesy  is  recognized  by  statute  in  very  many 
states.  In  California,  Texas,  Oregon  and  Washington  it  is  not 
recognized.  Real  property  is  there  held  by  husband  and  wife 
as  community  property.-  In  Ohio,  Oregon  and  Pennsylvania 
the  birth  of  issue  is  not  necessary.  In  a  few  of  the  states  the 
estate  by  curtesy  has  been  abolished,  and  under  the  statute  the 
husband  takes  a  certain  definite  share  of  his  wife's  property, 
xeal  or  personal. 

The  question  arises  as  to  the  wife's  power  to  dispose  of  her 
real  property,  held  in  fee,  in  such  a  manner  as  to  deprive  her 
husband  of  his  estate  by  the  curtesy.  In  some  states  it  is  held 
that  a  married  woman  may  cut  off  the  husband's  curtesy  Avith- 
out  his  consent,"  but  the  general  rule  is  that  the  curtesy  of  the 
husband  cannot  be  cut  off  unless  he  shall  assent  to  the  will. 
A  statute  enabling  a  married  woman  to  execute  a  will  to  the 
-same  extent  as  a  single  woman  does  not  alone  enable  a  married 
woman  to  destroy  the  estate  by  the  curtesy  of  the  husband.* 

Many  of  these  statutes  conferring  the  testamentary  power 
on  married  women  provide  that  they  shall  not  be  construed  to 
deprive  the  husband  of  his  estate  by  the  curtesy  to  which  he 
would  otherwise  be  entitled.^  Where  the  estate  and  interest  of 
the  husband  are  thus  protected  by  the  statute,  and  the  wife, 
while  attempting  to  dispose  of  his  estate  by  will,  gives  him  prop- 
erty over  Avhich  she  has  an  absolute  power  of  disposal,  tlie 
husband  will  be  put  to  his  election.  Indeed  it  has  been  held 
that  a  statute  referring  to  an  election  by  a  widow  is  also  ap- 
plicable to  an  election  by  the  husband^  in  the  matter  of  his 

12  Bl.  Com.  126,127;  Westcott  v.  v.  Goodrich,  15  Wis.  (1862),  389;  Mason 

:\Iiller  (1877),  42  Wis.  465;  4  Kent,  27;  v.  Johnson,  47  Md.  (1877).  347. 
Billings  V.  Baker,  28  Barb.  (N.  Y.,        ^Teacles'  Estate,  132  Pa.  St  535; 

1859),  344  Clarke's  Appeal,  79  Pa.  St.  376. 
^Ante,  %  750.  SMiddleton  v.  Steward,  20  Atl.  R 

3  Garner  v.  Wills,  92  Ky.  386.  389  846,  47  N.  J.  Eq.  293;  Gearge  v.  Bus- 

(1891),  17  S.  W.  R.  1023;  In  re  Mitch-  sing,  15  B.  Men.  (Ky.),  558.  563,  564. 
«11,  61  Hun,  372;  Sleight  v.  Read,  18        «Slnelds  v.  Keys,  24  Iowa  (1868), 

Barb.  (N.  Y.,  1854),  159;    Neeley  v.  298;  Everett  v.  Croskrey,  92  Iowa,  333, 

Lancaster,  47  Ark.  175,  179;  Oatman  335  (1896),  60  N.  W.  R.  732. 


§   754.]  DOCTRINE    OF    EQUITABLE    ELECTION.  lOGl 

curtesy.  The  principle  of  an  election  is  not  only  applicable  ta- 
a  devise  which  is  in  lieu  of  curtes}'/  but  also  in  states  where 
curtesy  is  abolished.  An  election  may  be  required  where  the- 
husband  has  a  statutory  provision  made  for  him,  either  in  the- 
real  property-  or  in  the  personal  property  of  the  wife.'  The 
mere  fact  that  the  husband  acts  as  his  wife's  executor  and  re- 
ceives a  reasonable  compensation  does  not  indicate  that  he  has 
elected  to  stand  by  the  will,  where  it  gives  him  nothing,  but 
purports  to  dispose  of  his  property.* 

§  754.  Curtesy  in  land  in  separate  use  trust. —  It  has  been 
settled  from  the  earliest  times  that  the  real  property  of  a  mar- 
ried woman  of  which  she  was  seized  in  fee,  even  though  it  may 
have  been  settled  in  trust  to  her  separate  use,  was  subject  ta 
the  estate  by  curtesy  in  her  husband.^  But  an  estate  may  be 
created  in  trust  which  shall  be  wholly  free  from  the  curtesy 
of  the  husband.  The  question  always  is,  not  whether  the  grantor 
in  a  separate  use  trust  had  the  power,  but  whether  he  intended  in 
creating  the  separate  use  to  destroy  the  husband'^s  curtesy.  The 
evidence  of  such  an  intention  must  be  clear;  for,  as  has  been 
said,  a  gift  of  a  fee-simple  estate,  or  of  money  to  the  separate 
use  of  a  married  woman,  gives  her  the  same  estate  precisely  as 
though  she  were  single.  She  has  the  same  power  to  dispose  of 
it  by  will,  but  if  she  does  not  dispose  of  it  by  will  her  husband's 
curtesy  will  attach.  The  mere  fact  that  the  estate  is  simply 
limited  to  her  separate  use,  or  even  that  it  is  secured  to  her  free 
from  her  husband's  debts,  or  that  it  is  expressly  stipulated  that 
it  should  go  to  her  heirs,  or  tliat  she  is  given  an  unlimited 
power  of  testamentary  disposition  over  it,  does  not  prevent  his 
curtesy  attaching,  if  she  does  not  dispose  of  it  by  the  will.'^ 

•  Cunningham  V.  Cunningham,  30  'Appeal    of  Coo,   30  Atl.    II.    140 

\V.  Va.  599  (1888),  5  S.  E.  IL  DJO;  Allen  (1894),  04  Conn.  aii. 

V.  Boomer,  82  Wis.    (1892),  !{«t.  :{71;  « Tyler  v.  Who<'ler,  n.!  N.  E.  R.  006 

Silshy  V.  Ihiliock,  10  Alh-ii  (92  .Mass.,  (1S9:{).  100  Mass.  200.     Tlu-  lien  of  tho 

180.')),  91;  lieirne'H  Ex'rs  V.  Vt>n  Aliki-  judgment  creditors  of  tho  luisband 

feldt    (Iteirne's     Ex'rs    v.     Ikjirno's  on  his  estate  by  tho  curtesy  is  not 

Adm'rH),  11  S.  H  It  40,  33  W.  Va.  003.  defeated  nor  ix)sti>onod  by  its  mer- 

'^  Everett  v.  Croskrey,  92  Iowa,  333  ger  into  the  fee  of  land  whicli  is  de- 

(189r,),  00  N.  W.   R  732;  Wright  v.  vised  to  tho  husban.I  by   his  wife. 

JoncH,  105  Ind.  (188r»),  17,  21;  Clark  Browne's  A<lm'x  v.  Uuckover  (Va.), 

V.  Clark.   132  Infl.  2Ti,  20;  liowlcy  v.  4  S.  R  It.  74.'). 

SjiridH.  141   Ind.  179,  1H;{,  40  .V,  E.   H.  •'- IJoIhtIs  v.  Dixw.-ll,  1  Atk.  007. 

674;  Chirk  v.  Clurk,   132   Ind.  (1892),  "Nuland   v.  CliamlMTs.  2  S.  W.  II. 

25.  121,  84  Ky.  r,IO;  I'ih,!  v.  HIakie.  53  UL 


1002 


LAW    OF   WILLS. 


[§ 


(1S70\  495.  503;  Stokes  v.  McKibbin, 
13  Pa.  St.  (1849),  267;  Alexander  v. 
Warrance  (1852),  17  Mo.  228,  231; 
Baker  v.  Nail,  59  Mo.  (1875),  265; 
Trenimel  v.  Kleiboldt.  75  Mo.  (1882), 
255.  259;  Gushing  v.  Blake,  30  N.  J. 
Eq.  689,  697;  Carter  v.  Dale,  3  Lea 
(Tenn.),  710,  712;  Frazer  v.  High- 
town,  12  Heisk.  (Tenn.)  94;  Chapman 
V.  Price,  83  Va.  392,  395;  Hutchings 
V.  Bank,  91  Va.  68;  Kiracofe  v.  Kira- 
cofe.  93  Va.  591,  593;  Watts  v.  Ball,  1 
P.  W.  108;  Parker  v.  Carter,  4  Hare, 


400;  Pitt  V.  Jackson,  2  Bro.  C.  C.  51: 
Harris  v.  ISIott,  14  Beav.  169;  Morgan 
V.  Morgan,  5  Mad.  408;  FoUet  v. 
Tyrer,  14  Sim.  125;  Appleton  v.  Row- 
ley, L.  R  8  Eq.  137,  139;  Massey  v. 
Parker,  3  My.  &  K  174,  181.  In  a 
most  recent  and  leading  case.  Cooper 
V.  McDonald,  L.  R.  7  Cli.  D.  288,  300, 
it  was  held  that  though  the  husband 
was  entitled  to  curtesy  in  a  separate 
estate,  yet  the  wife  might  dispose  of 
it  by  will,  and  her  husband's  curtesy 
would  be  defeated. 


CHAPTER  XXXYIII. 


DONATIONS  MORTIS  CAUSA. 


§  753.  Donation  mortis  causa  de- 
fined, and  the  origin  of  the 
doctrine  investigated. 

756.  The  necessity  for  the  existence 

of  r.n  immediate  apprehen- 
sion of  death. 

757.  The  necessity  for  delivery,  act- 

ual or  constructive  —  The 
revocable  character  of  the 
donation. 


758.  The  character  and  mode  of  the 

delivery. 

759.  Gifts  CQKsa  mortis  of  savings 

bank  books,  checks  and  ne- 
gotiable instruments. 

760.  Gifts  causa  mortis  in  trust. 
7G1.  The  character  and  burden  of 

proof  to    establish    a    gift 
causa  mortis. 


§  755.  Donation  mortis  causa  defined,  and  the  origin  of  the 
doctrine  investigated. —  The  donation  mortis  causa  had  its 
■origin  in  the  Eoman  civil  law,  whence  it  was  introduced  into 
the  English  ecclesiastical  courts,  and  ultimately  into  the  courts 
of  chancery  in  the  earlier  half  of  the  seventeenth  century.  In 
the  Eoman  law  three  species  of  donationes  mortis  causa  were 
distinguished,  though  to  the  modern  eye  the  lines  of  demarca- 
tion between  them  are  hardly  distinguishable.  The  first  is  a 
gift  by  a  person  who  is  in  no  present  danger  of  death,  which  is 
made  in  contemplation  of  death  in  general,  to  take  efTect  when 
he  dies.  This  sort  of  donatio  mortis  causa  is  the  modern  nun- 
cupative will.  The  second  sort  oi donatio  mortis  causa  is  whore 
the  danger  of  death  is  imminent  and  the  property  is  delivered, 
but  the  gift  is  defeasible  in  ca.se  of  ultimate  recovery  or  escui>o 
from  the  danger  of  death.  I'liis  is  the  iiiodorn  donatio  mortis 
causa  of  English  jurisprudence.  The  third  is  where  the  donor 
is  in  some  danger  of  death,  though  it  is  not  iiinnln(  ut,  and  he 
transfers  the  property,  th(Migh  without  delivery,  which  is  only 
to  take  place  upon  his  death. ^ 

The  rules  and  })rinciples  regulating  this  subject  are  very  fully 
treated  in  the  books  of  the  writtM-s  upon  the  Roman  civil  law, 
and  that  sysU.'m  of  law  hedged  in  these  gifts  with  nunu'rous 


•Sc-e  Ward   v.  Turner,  2  Vuh.  431,  442,  citing  tho  civiliunH:  Dig.,  lib.  39, 
tit  0,  Uiw  y^ 


lOG-t  LAW    OF   WILLS.  [§   755. 

formalitios  which  were  well  calculated  to  pT'otect  the  donor 
from  imposition,  to  safeguard  the  interest  of  the  hcrcs,  and  to 
provide  restraints  upon  improvident  persons,  whose  generosity, 
exceeding  their  sense  of  justice,  prompted  them  to  dispose  of 
their  patrimony  in  gifts  to  friends  and  dependants  to  the  in- 
jury of  their  creditors  and  the  members  of  their  own  families. 

The  rules  re2:ulatino:  gifts  moi^tis  causa  were  first  formulated 
at  length  in  England  by  Lord  Chancellor  Ilardwicke,  in  a  case  ^ 
which  was  decided  by  him  in  the  year  1752.  In  that  case,  as 
in  most  cases  which  come  under  this  head  of  the  law,  the  main 
question  was,  "What  shall  constitute  a  delivery  of  the  thing 
which  is  the  subject  of  the  gift?  Among  the  articles  alleged 
to  have  been  given  were  receipts  for  South  Sea  Annuities,  and 
the  court  held  that  the  title  did  not  pass  by  a  manual  delivery 
of  these  papers,  which  were  only  evidence  of  the  existence  of 
and  title  to  the  thing,  and  not  the  thing  itself,  and  which  it  was 
the  custom  to  disregard  and  treat  as  waste  paper  after  an  act- 
ual purchase  and  transfer  of  the  annuities.  Though  in  a  pre- 
vious case  decided  in  1744,  the  same  chancellor  had  held  the 
delivery  of  a  bond  as  a  good  gift  causa  mortis  of  the  debt,^  upon 
the  ground  that,  though  the  bond  is  merely  a  chose  in  action, 
yet  some  jyroperty  is  transferred  by  its  delivery,  and  the  person 
to  whom  it  is  delivered  may  cancel  the  debt  by  destroying  the 
bond,  which  would  prevent  bringing  an  action  which  could  not 
be  maintained  at  common  law  without  profert,  in  this  case  the 
chancellor  refused  to  go  any  further. 

Passing  from  the  questions  of  the  necessity  of  a  delivery, 
and  what  shall  constitute  a  good  delivery,  the  court  inquired 
as  to  the  status  of  donationes  mortis  causa  in  the  ecclesiastical 
courts.  Inasmuch  as  the  gift  causa  mortis,  if  valid  at  all,  must 
be  a  good  gift  taking  the  property  out  of  the  deceased  person's 
estate,  the  church  courts  could  not  have  any  direct  jurisdiction 
of  the  matter  by  reason  of  their  jurisdiction  of  the  estates  of 
deceased  persons.  But  they  had  collateral  jurisdiction,  and 
modern  probate  courts  have  the  same  jurisdiction  in  two  classes 
of  cases.  The  first  class  is  where  an  administrator  declines  to 
deliver  the  surplus  assets  to  the  next  of  kin  upon  the  grounds 

1  Ward  V.  Turner,  2  Ves.  431, 1  Dick.        2  Snellgrove  v.  Bailey,  3  Atk.  314. 
170.     See  White  &  Tudor's  Leading 
Cases,  vol.  1,  p.  1058. 


^  755.]  DONATIONS  MORTIS  CAUSA.  10G5 

that  tliey  have  been  given  away  by  the  deceased  person  causa 
tnoiiis.  The  second  chiss  is  where  the  delivery  of  property 
specifically  bequeathed  or  included  in  a  residue  to  a  legatee  is 
refused  by  an  executor  upon  the  grounds  that  it  has  been  given 
causa  mortis.  But  the  chancellor  could  find  only  one  case  in 
which  the  powers  of  the  ecclesiastical  court  had  been  exercised, 
and  in  that  case  the  pretended  gift  was  held  valid  as  a  will.^ 
But  the  English  courts  of  equity  have  from  that  time  down  to 
the  present  always  assumed  jurisdiction  of  the  matter.  This 
jurisdiction  is  exclusive  where  the  gift  is  to  one  person  to  hold 
as  a  trustee  for  another.  In  other  cases  it  is  concurrent  with 
the  power  of  a  court  of  law,  for  the  donee  may  bring  a  suit 
against  the  executor  at  common  law  to  recover  the  personal 
chattel  which  was  the  subject  of  the  gift  causa  mortis?  The 
action  is  one  in  the  nature  of  assumjpsit?  It  is  necessary  in  the 
first  place  to  define  a  gift  causa  mortis,  and  to  distinguish  it 
from  a  gift  inter  vivos,  on  the  one  hand,  and  on  the  other  from 
a  legacy.  A  legacy  is  a  gift  of  personal  property  which  is  con- 
tained in  a  testament,  which  has  been  executed  with  proper 
formalities  qualif3ing  it  for  probate.  The  legatee  takes  no  in- 
terest whatever  from  the  execution  of  the  will.  He  has  only 
the  expectation  of  receiving  something  from  the  estate  of  the 
testator  upon  his  death.  This  expectation  may  be  disappointed 
by  an  ademption  or  a  revocation.  The  legacy  vests  in  him,  if  at 
all,  only  at  or  after  the  death  of  the  testator.*  A  donation  mortis 
causa  is  a  gift  of  personal  property  made  by  a  person  during 
his  last  illness,  or  when  he  is  in  imminent  peril  of  death,  or  in 
expectation  of  death,  which  the  donee  is  to  retain  as  absolutely 
his  own  if  the  donor  shall  die  of  that  illness  or  peril,  but  which 
is  revociiblc  by  the  donor  at  any  time  during  his  life,  and  whith 
is  revoked  by  implication  Ijy  the  recovery  of  the  donor.' 

The  doctrine  of  (hmationes  mortis  causa  has  no  reference?  to 
transfers  of  real  [)roj)erty.''  Upc^n  citiiiiJai-ing  these  delinitions 
it  will  be  s<icn  that  a  legacy  resembles  a  d<»iKition  mortm  causa 

iQuHlf-y  V,  Currill,  rWvA  Ward  v.  288;  Daskot  v.  Has.'all.  107  U.  S.  002; 

Turner,  1  Dick.  170.     S«-t;  alw)  Thor-  Marsliall  v.  Mt-rry.  i:{  Allen  (Milks.).  IJJ. 
ol<i  V.  Thorol.l,  1  riiil.  1;  Attornoy-        <  ylw/r.  ^".^  lO')- Jl  I, 
(iunenil  v.  Jcmcm,  U  Vr'xvti,  '.H\H.  »2  I'.l.  O.iii..  i>.  511;  2  Kont'H  C'oni., 

2Tate  V.    Hill.ert,  2  Ves.  Jr.    Ill,  p.  211;   1  Story's  Imj..  .t^'r^  000,  007. 
120.  «  Wriitw.rlli  V.  biiibloH  (Mo.,  1895), 

'GoHS  V.  Simiwon,  4  Coltlw.  (Tonn.)  150  All.  K.  Un 


lOOO  LAW   OF   -WILLS.  [§  755. 

in  that  both  are  ambulatory,  and  that  cither  may  be  irvohed 
hy  the  donor  he/ore  his  death.  I3ut  the  donee,  luilike  the  legatee, 
derives  his  title  directly  from  the  donor.  No  probate  is  required, 
and  the  donee  takes  not  from  the  personal  representative  of 
the  deceased  donor,  but  adverse  to  hiin.  Hence  the  executor  of 
the  donor  has  no  interest  in,  title  to,  or  control  over  the  thing 
given,  unless  it  is  discovered  that  a  deficiency  of  assets  existed 
Avhen  the  gift  was  made.  There  is  no  rule  of  law  which  pro- 
hibits a  man  from  disposing  of  his  entire  personal  estate  by  a 
gift  causa  mortis.^  But  the  donee  takes  subject  to  the  rights  of 
the  creditors  of  the  donor,  and,  if  there  is  a  deficiency  of  assets 
the  property  donated  becomes  a  part  of  the  personal  estate  of 
the  deceased,  and  may  be  devoted,  so  far  as  is  necessary,  to 
paying  the  debts  of  the  donor.^  If  the  executor  has  obtained 
possession  of  the  property  which  has  been  donated,  a  common- 
law  action  will  lie  to  recover  it,'  and  if  the  personal  representa- 
tive shall  claim  title  to  it  because  of  a  deficiency  of  assets  to 
meet  the  demands  of  the  creditors,  the  burden  of  proof  to  show 
this  fact  is  upon  him,  as  it  will  be  presumed  that  the  testator 
had  sufficient  wherewith  to  do  justice  to  his  creditors  or  he 
would  not  have  been  so  generous  with  his  property.* 

1  Wetmore  v.  Brooks,  18  N.  Y.  Supp.  whether  the  donor  lives  or  dies,  it  is 

852;    Thomas'   Adm'r  v.   Lewis,   89  a  gift  infer  riuos.     A  gift  causa  mor- 

Va.  1,  15  S.  E.  R  389.  tis,  like  a  legacy,  is  revocable  during 

-  Borneman    v.    Sidlinger,   15  Me.  life.     But  on  the  donor's  death  the 

429,431;  Gourley  v.  Linsenbigler,  51  title  of  the  donee  is  absolute  with- 

Pa.  St.  345,  349;    Dunn   v.  German  out  proving  it  in  acouit  of  probate, 

American    Bank,    109  Mo.   90,   101;  and  in  this  respect  it  differs  from  a 

Grant  v.  Tucker,  18  Ala.  27;  Mitch-  legacy.     A  mere  promise  to  pay  a 

ell  V.  Pearce,  7  Gush.  (61  Mass.,  1851),  sum  of  money  cannot  be  a  donatio 

350;  Sexton  v.  Wheaton,  8  Wheat,  causa  mortis.     HoUey  v.  Adams,  10 

(21  U.  S.)  229;  Thompson  v.  Dough-  Vt.  (1844),  206,  210.     Cf.  post,  §  759. 

erty,  12  S.  &  R.  (Pa.)  448;  Brown  v.  Though  a  gift  causa  mortis  may  be 

Brown,  18  Conn.  (1846),  414;  Hudnal  revoked  at  any  time  during  the  life 

V.  Wilder,  4  McCord  (S.  C.  Lawj,  294;  of  the  donor,  it  will  not  be  revoked 

Jones  V.  Brown,  34  N.  H.  439.  by  a  will    bequeathing    tlie  thing 

3  Westerlo  v.  De  Witt,  36  N.  Y.  346;  which  was  given  to  another  than  the 

Michenor  v.  Dale,  23  Pa,  St.  59.  donee,  for  the  will  takes  effect  only 

*To    constitute    a   valid    donatio  on  the  death  of  the  donor,  hy  which 

causa  mortis  it  must  be  made  in  con-  also  the  donation  becomes  absolute, 

templation  oi"  death,  to  be  effective  Brunson  v.  Henry,  140  Ind.  455,  39 

only  it'  the  donor  dies,  and  must  be  N.  E.  R.  256.     But  if  the  donee  be- 

accompanied  by  delivery.    If  the  gift  queaths  the  subject  of  the  gift  cam-a 

is   absolute,  and  is  to  take    effect  viortis,  by  the  same  will  giving  a  leg- 


§  756.] 


DONATIONS    MORTIS    CAUSA. 


1067 


§  756.  Tl»e  necessity  for  the  existence  of  the  immediate 
apprehension  of  death. —  In.  order  to  constitute  a  valid  gift 
causa  mortis  it  is  absolutely  essential  that  the  gift  should  have 
been  made  in  the  immediate  apprehension  of  death  from  an 
existing  illness  or  an  impending  peril.^  It  is  not  essential  that 
the  donor  should  expressly  state  in  words  that  he  makes  the 
gift  in  the  immediate  expectation  of  death.  Such  an  intention 
and  expectation  may  be  presumed  from  the  circumstances  under 
which  the  delivery  is  made,  as  where  the  donor  is  in  fact  upon 
his  death  bed  or  in  his  last  sickness.^ 

A  gift  made  in  contemplation,  expectation  or  fear  of  a  pos- 
sible or  even  a  very  probable  death  in  the  future,  e.  g.,  by  a 
sailor,  a  soldier  or  a  traveler  embarking  upon  an  extremely 
hazardous  voyage,  or  upon  an  expedition  attended  with  danger 
to  life,  is  not  a  good  gift  causa  mortis  in  the  modern  law.'  If 
the  gift  was  in  fact  made  in  the  immediate  expectation  of 
death,  it  is  not  material  that  some  time  had  elapsed  before 
death  actually  occurred,  provided  the  death  of  the  donor  re- 
sulted from  the  same  disease  or  accident  and  the  gift  was  not 
revoked  in  the  meantime.* 


acy  to  the  donee,  the  latter  must 
elect  between  the  gift  and  the  leg- 
acy, and  cannot  claim  both.  John- 
son v.  Smith,  1  Ves.  314. 

1  Carty  v.  Connolly,  91  CaL  15,  22; 
Zeller  v.  Johnston,  105  Cal  143,  148, 
38  Pac.  R.  640;  First  Nat.  Bank  v. 
Balcom,  35  Conn.  (1868),  351;  Ray- 
mond V.  Sellick.  10  Conn.  480  (1835); 
lie  vol  V.  Dye.  123  In.l.  321,  24  N.  E.  R. 
216;  Brunwjii  v.  Henry,  110  Ind.  45.5, 
30  N.  E.  R.  255;  Smith  v.  Dorsey,  38 
Ind.  (1871),  451;  Knot  v.  Hogan,  4 
Meto.  (Ky.) 'J'J;  WesUjn  v.  1  light,  17 
Me.  287;  SlifMidy  v.  Roiich,  121  Ma.ss. 
472.475;  Ellis  v.  Secor,  31  Mich.  (1875), 
1^5.180;  Brickett  v.  Brickett.  20  N. 
J.  Eq.  478.  470;  Irish  v.  Nutting,  47 
Barb.  (N.  Y.)  370,  373,  :{87;  Van  Elect 
V.  McCarn,  2  N.  Y.  Supj).  075;  I^ing- 
■vvnrthy  v.  Criwy,  31  N.  Y.  Hupp.  85, 
10  Mi.HC.  lU'p.  4.'»0;  ("luiinpney  v. 
I'.hincliard,  3»  N.  Y.  (1H<IH).  HI;  I)«'h- 
h"im»-r  v.  (Juulifr.  31  How.  Br.  It<![). 
(N.  Y.)  472;  Kirk  v.  McCu^ker,  22  N. 


Y.  Supp.  780,  781;  Gourley  v.  Linsen- 
bigler,  51  Pa.  St.  345;  Rhodes  v. 
Childs,  64  Pa,  St.  18,  24  (1870);  Brick- 
house  V.  Brickhouse,  11  Ired.  (N.  C.) 
L.  404,  406;  Thompson  v.  Thomi>son. 
12  Tex.  327;  French  v.  Raymond,  31) 
Vt.  623. 

2  Miller  v.  Miller,  3  P.  Wms.  356; 
Walter  v.  Hodges,  2  Sw.  100.  And 
see  Reynolds  v.  Reyn<jlds,  45  N.  \. 
Sui)p.  338. 

3  First  Nat.  Bank  v.  Balcom,  35 
Conn.  351;  Price  v.  llutlsoii  (111., 
1805),  17  N  E.  R.  817;  McCarty  v. 
Kearnan,  86  111.  291;  Proseus  v.  Por- 
t«^r.  46  N.  Y.  Supp.  656;  Smith  v.  Dor- 
Kfy,  33  Ind.  451.  And  seo  casi's  in 
last  note.  Compare  Virgin  v.  (ioUnT. 
42  III.  30. 

<  Darland  v.  Tayl«)r,  52  Iowa.  503, 
506.  In  Williams  v.  (Juilo.  117  N.  Y. 
343,  22  N.  K.  R  1071.  a  |K'rio(l  of  six 
weeks  (dapsfd  lx<tw<>rii  (hn  delivery 
of  tlie  property  and  the  deiilli  of  the 
donor.     .See  iil.so  Kicideii   v.  Thrall,  7 


lOGS 


LAW    OF    WILLS. 


[§^ 


r58. 


§  757.  Tlio  iiocossity  for  delivery,  actual  or  constructive. 
The  revocable  character  of  the  donatioii. —  If  the  donor  re- 
cover from  the  disease  or  escape  the  danger  which  created 
the  apprehension  of  deatli,  the  gift  is  revoked  by  implication 
of  law.^  Or  it  may  be  express!}^  revoked  by  the  donor  at  any 
time  prior  to  his  decease.-  The  main  requisite  to  the  validity 
of  a  gift  causa  mortis  is  that  there  shall  be  a  delivery  or  tra- 
dition of  the  thing  given  by  the  donor  to  the  donee.' 

What  acts  upon  the  part  of  the  donor  are  sufficient  to  con- 
stitute a  delivery  we  will  now  proceed  to  consider. 

§758.  Character  and  mode  of  the  delivery. —  It  was  in- 
sisted by  the  English  chancellors  in  the  early  cases  tliat  there 
must  be  an  actual  delivery  of  the  chattel  which  was  given.  A 
symholiG  delivery  of  a  key  of  a  box  or  trunk  in  which  the  chattel 
was  kept  would  not  suffice.     The  strict  application  of  this  rule 


N.  Y.  Supp.  822,  55  Hun,  185,  24  Abb. 
N.  C.  52. 

1  Logenf eil  v.  Richter,  61  N.  W.  R. 
826, 828,  60  Minn.  49;  Conser  v.  Snow- 
den,  54  Md.  175.  185;  Carty  v.  Con- 
nolly, 91  Cal.  15;  Thomas  v.  Lewis, 
!S9  Va.  1,  15  S.  E.  R.  389;  Collins  v. 
Collins,  31  N.  Y.  Supp.  1017,  11  Misc. 
R.  28;  Michener  v.  Dale,  23  Pa.  St. 
59;  Bunn  v.  Markham,  7  Taunt.  224; 
Tate  V.  Hilbert,  2  Ves.  111.  In  Gard- 
ner V.  Parker,  3  Madd.  184,  Sir  John 
Leach  said:  "  This  bond  was  given  in 
the  extremity  of  sickness  and  in 
contemplation  of  death;  and  it  is  to 
be  inferred  that  it  was  the  intention 
of  the  donor  that  it  should  be  held 
as  a  gift  only  in  case  of  his  death. 
If  a  gift  is  made  in  expectation  of 
death,  there  is  an  implied  condition 
tliat  it  is  to  be  held  only  in  the  event 
of  death." 

2  Rhodes  V.  Childs,  64  Pa.  St.  18, 23; 
Parker  v.  Marston,  27  Me.  196,  204; 
Ellis  V.  Secor,  31  Mich.  185;  Gratton 
V.  Appleton,  2  Story  C.  C.  755:  Par- 
ish v.  Stone,  14  Pick.  (Mass.)  198; 
Doran  v.  Doran,  99  Cal.  311,  315; 
Barnum  v.  Reed,  136  111.  388,  398; 
Walsh's  Appeal,  122  Pa.  St.  177;  Brun- 
Bon  V.  Henry,  140  Ind.  455,  39  N.  E. 


R.  256,  259;  Dale  v.  Lincoln,  31  Me. 
422. 

3Bromberg  v.  Bates  (Ala.,  1897), 
20  S.  R.  786;  Williams  v.  Chamber- 
Iain,  46  N.  E.  R.  250  (111.,  1896);  Dun- 
bar V.  Dunbar,  80  Me.  450;  Fearing 
V.  Jones,  149  Mass.  12, 20  N.  E.  R.  199; 
feowers  V.  Hurd,  10  Mass.  427;  Keep- 
ers V.  Title  Co.,  56  N.  J.  L.  302,  305; 
Harris  v.  Cable,  71  N.  W.  R.  531 
(Mich.,  1897);  Blasdell  v.  Locke,  52 
N.  H.  (1873),  239;  Holmes  v.  Roper, 
141  N.  Y.  64,  36  N.  E.  R.  180;  Grymes 
V.  Hone  (1872),  49  N.  Y.  17;  Ridden 
v.  Thrall,  125  N.  Y.  (1891),  572,  579; 
Harris  v.  Clark,  3  N.  Y.  93;  Kirk  v. 
McCusker,  22  N.  Y.  Supp.  780,  3 
Misc.  R.  277;  Campbell's  Estate,  7 
Pa.  St.  100  (1847);  Michenor  v.  Dale, 

23  Pa.  St.  59;  Close  v.  Dennison,  6 
R.  I.  88;  Smith  v.  Zumbro  (W.  Va.), 

24  S.  E.  R.  653;  Resell  v.  Senn,  28 
Wis.  (1871),  2y6;  Miller  v.  Jeffress,  4 
Gratt.  (Va.)  479;  Trenholm  v.  Mor- 
gan (S.  C),  5  S.  E.  R.  721;  Basket 
V.  Hascall,  107  U.  S.  602;  Ward  v. 
Turner,  2  Ves.  Jr.  431,  1  W.  &  T. 
L.  Cas.  1059,  1071;  Cutting  v,  Gil- 
man,  41  N.  H.  147;  Levis  v.  Walker, 
8  Humph.  (Tenn.)  508. 


§   T5S.]  DONATIONS    MORTIS    CAUSA.  lOGO 

often  resulted  in  overthrowing  gifts  of  clioses  in  action  evi- 
denced by  bonds  and  notes  which  were  on  deposit  for  safe 
keeping  in  chests  or  boxes.  And  the  court  of  chancery  distin- 
guished between  the  delivery  of  the  key  of  a  box  which  w^as 
itself  so  small  that  it  might  have  been  readily  handed  over, 
and  the  delivery  of  the  key  of  a  wine  vault,  w^here  the  key  was 
not  a  mere  symbol  of  possession,  but  the  only  way  of  getting 
at  the  possession  of  the  vrine  in  the  vault.  A  delivery  by  sym- 
bol was  repudiated  also  by  the  civil  law.^  But  the  strictness 
of  the  ancient  rule  has  not  been  adhered  to  by  the  modern 
cases.  Equity  looks  rather  to  the  intention  of  the  parties  than 
to  the  manner  of  the  delivery.  Consequently  the  delivery  may 
be  valid,  though  symbolic  merely,  w^here  under  the  particular 
circumstances  an  actual  delivery  is  impossible.^ 

Admitting  that  the  gift  of  a  set  of  keys  to  a  box  deposited 
in  the  vaults  of  a  bank  constitutes  a  delivery  of  the  securities 
in  the  box,  it  is  immaterial  that  the  donor  had,  prior  thereto, 
placed  a  duplicate  set  of  keys  in  the  hands  of  a  friend  to  be 
used  in  case  of  the  loss  of  the  original'set.'  IS^or  is  it  neces- 
sary that  the  donee  should,  on  receiving  the  keys,  at  once  pro- 
ceed to  take  possession  of  the  chattels.  Thus,  where  the  things 
given  were  in  a  portable  cupboard  in  the  room  occupied  by 
the  donor,  and  he  handed  the  donee  the  key  of  the  cupboard, 
saying  he  wished  him  to  have  all  that  was  in  it,  the  donation 
was  held  to  be  valid,  though  the  donee  permitted  the  articles 
to  remain  locked  up  in  the  cupboard  until  after  tJie  death  of 
the  donor} 

J  Ward  V.  Turner,  2  Ves.  431, 1  Dick.  v.  Emmons,  158  l^Iass.  592,  593,  33  N. 

170;  and  comi)are  ante,  %  310.  E.  11.  706;  Cooper  v.  Burr,  45  Harl>. 

2  Dunn  V.  German  Amer.  Ins.  Co.,  (N.  Y.)  9;  Marsh  v.  Fuller,  18  N.  II. 

109  Mo.  VO,  99;  Debinson  v.  Emmons,  300  (iHlfj);  Jones  v.  Brown.  34  N.  H. 

158  Mas.s.  500.  592. 593;  Parish  v.  Stone,  (1857),  429;  In  r'j  Wise,  37  Atl.  U.  930 

14  Pick.  (Mass.)  203;  McCJ rath  V.  lU-y-  (Piu,  1897);    Wilson   v.   iMatlisoii,    5.3 

nold.s,    110    Mass.   .500;     Marshall   v.  Wis.  23,  27. 

lierry,  13  Allen  (Mass.).  43;  R<x-U\vood        '  Thomas'  A<lm'r  v.  Lewis,  H9  Va.  t. 

V.  WiKK'n,  10(Jray(.MaKH.),4(»2;  Hatcli  15  S.  E.  It.  389.     A  statute  provi.liiiK' 

V.  Atkinson,  .50  .M<'.  321.    As,  for  f.xaiu-  that  no  K'ft  of  chattels  shall  lie  valid 

pie.  where  the  donor  is  uiM)n  his  rlcath-  unless  actual   |M)ss(!ssion  shall   have 

lK;d  and  he  haii'ls  over  a  key  to  a  hccn  transfcrretl  to  the  <l<>nor  has  no 

trunk  or  a  chest,  or  8afe-<|c|Mwit  vault  ap|»lication   to  a  K'ft  causa  iimrtis. 

in   which    the   valuahl«*H    are   kept.  Thomas' Adiii'r  v.  Lewis, bO  Va.  1,  15 

(Joulding  V.  Hanhury,  H5  Me,  (1H92),  S.  R  It.  3H9. 
227,  280,  281,  27  AtL  It.  127;  Dcbiubou        «(jlouldinB  v.  Horbury,  27  Atl.  lu 


loro 


LAW    OF    WILLS. 


[§  T59. 


§  750.  Cifts  causa  mortis  of  saviiigs-banlv  books,  checks 
and  iiOj^otiablc  instninieiits. —  Whether  the  actual  delivery  of 
a  banlc-book  showing  a  deposit  to  the  credit  of  the  donor  in  a 
savings  bank,  alone  and  without  any  further  action  on  the  part 
of  the  donor  or  donee,  is  a  valid  gift  causa  mortis  of  the  money 
upon  deposit  is  not  settled.  The  current  of  the  most  recent 
cases  seems  to  sustain  the  affirmative  of  this  proposition  where 
the  delivery  of  the  pass-book  is  accompanied  by  language  on 
the  part  of  the  donor  sufficient  to  show  an  intention  to  pass  the 
title  to  the  money  on  deposit,  and  where  the  donor,  in  sur- 
rendering the  possession  of  the  pass-book,  also  surrenders  all 
dominion  and  control  over  it}     But  neither  verbal  declarations 


127,  85  Me.  227,  234.  The  fact  of  the 
delivery  is  to  be  determined  by  the 
jury.  Dunn  v.  German  American 
Bank,  109  Mo.  90,  18  S.  W.  R.  1139. 
In  the  case  of  Coleman  v.  Parker,  114 
Mass.  30,  the  court  said:  "We  have 
no  doubt  that  a  trunk  with  its  con- 
tents might  be  effectually  delivered 
in  such  a  case  by  the  delivery  of  the 
key.  If  the  key  in  this  case  had 
been  placed  in  the  hands  of  the  wit- 
ness, the  donor  relinquishing  all  do- 
minion and  control  over  it,  and  part- 
ing with  it  absolutely,  or  if  by  the 
direction  of  the  donor  the  witness 
bad  taken  it  into  her  possession  and 
control,  there  would  have  been  a  suf- 
ficient delivery  to  make  out  a  full 
title  in  the  plaintiff."  A  delivery  of 
keys  will  not  be  equivalent  to  a  de- 
livery of  household  furniture,  in  the 
absence  of  proof  that  the  keys  given 
secured  access  to  the  furniture.  In  re 
Somerville,  2  Con.  Sur.  86.  The  de- 
struction by  the  donor  of  a  note  obli- 
gatory on  the  donee  may  be  a  good 
constructive  delivery  as  against  the 
donor's  personal  representative.  Dar- 
land  V,  Taylor.  53  Iowa  (1879),  503, 
506;  Gardner  v.  Gardner,  22  Wend. 
(N.  Y.),  525, 526;  Lee  v.  Boak,  11  Gratt. 
(Va.,  1854),  182,  186,  188;  Morse  v. 
Weston,  152  Mass.  5,  6  (1890).  Where 
a  donor,  in  the  expectation  of  death. 
Lands  a  sum  of  money  to  the  donee, 


intending  it  to  be  a  gift  causa  mor- 
tis, the  deliver}^  is  sufficient,  though 
the  donee  immediately  placed  the 
money  in  the  desk  of  the  donor. 
Carle  v.  Monkhouse,  50  N.  J.  Eq.  537, 
25  Atl.  R.  157.  The  handing  over  of 
a  bill  of  sale  of  articles  which  are  ca- 
pable of  actual  delivery  is  not  a  suf- 
ficient delivery.  Knight  v.  Tripp 
(Cal,  1898),  54  Pac.  R.  267.  A  person 
in  contemplation  of  her  death,  stat- 
ing to  a  friend  that  she  wanted  to 
give  him  her  property,  gave  him  the 
key  to  a  desk  in  which  he  subse- 
quently placed  certain  notes  indorsed 
by  her,  he  retainmg  the  key.  Held, 
not  a  sufficient  delivery. 

1  Camp's  Appeal,  36  Conn.  (1869), 
88;  Hill  v.  Stevenson,  63  Me.  364; 
Drew  v.  Haggerty,  81  Me.  231  (1889), 
17  Atl.  R  63;  Debinson  v.  Emmons, 
1.58  Mass.  592,  593;  Pierce  v.  Savings 
Bank,  129  ]\Iass.  (1880),  425;  Sheedy 
V.  Roach,  124  Mass.  472,  475;  Callanan 
V.  Clement,  42  N.  Y.  Supp.  514;  Dev- 
lin V.  Farmer,  9  N.  Y.  Su])p.  530;  Rey- 
nolds V.  Reynolds,  45  N.  Y.  Supp.  338; 
Loucks  V.  Johnson,  24  N.  Y.  Supp. 
267,  268;  Walsh  v.  Bank,  7  N.  Y.  Supp. 
669;  Tillinghast  v.  Wheaton,  8  R.  I. 
(1867),  536,  542,  543;  Dean  v.  Dean,  43 
Vt.  (1871),  337.  But  compare,  contra, 
Conser  v.  Snowden.  54  Md.  (1880),  185; 
Case  V.  Dennison.  9  R.  I.  88.  90;  Dan- 
iel V.  Smith,  04  Cal.  346  (1883),  30  Pac. 


§  759.]  DONATIONS   MORTIS    CACSA.  lUTI 

by  the  donor,  nor  bis  written  statement  of  an  intention  on  his 
part  to  make  a  gift,  is  enough  to  constitute  a  delivery  in  case 
of  a  deposit  in  a  savings  bank  which  is  evidenced  by  a  savings- 
bank  book  which  is  not  delivered.^  And  the  gift  causa  mortis 
of  a  bank-book,  assuming  it  to  be  valid  as  such,  was  held  to 
have  been  revoked  where  the  donor,  a  short  time  prior  to  his 
death,  told  the  donee  to  go  to  the  bank,  get  the  money  and 
bring  it  to  him.^ 

The  rule  reirulating  gifts  causa  mortis  consistinor  of  choses 

Coo  o 

in  action  evidenced  by  written  instruments  is  apparently  in- 
volved in  inextricable  confusion.  The  leading  case '  determined 
that  though  the  handing  over  by  the  obligee  of  a  bond  which 
is  a  specialty  might  be  a  valid  delivery  which  would  transfer 
title  to  the  debt,  for  the  reason  that  by  canceling  the  bond 
the  right  to  recover  the  debt  was  gone,  because  of  the  impos- 
sibility of  making  profert,  the  transfer  of  certain  receipts  for 
stock  did  not  constitute  a  delivery  thereof,  for  the  stock  might 
be  sold  and  transferred  only  by  an  entry  on  the  books  of  the 
corporation,  after  which  the  receipts  were  so  much  waste  paper. 
Later  cases  have  departed  widely  from  this  rule.  While  the 
ch^ck  of  the  donor,  dravjn  hy  him.  upon  money  which  is  in  a 
bank  and  to  his  credit,  may  not  constitute  a  valid  gift  causa. 
mortis,  because  it  is  merely  an  order  or  authority  to  receive 
money  from  his  l)ailee,  and  over  which  he  never  loses  control 
until  it  is  paid,  for  he  may  recall  it  at  any  moment  before  it  is 
accepted,  and  it  is  revoked  by  his  death,  nevertheless  a  person 
may  make  a  valid  gift  of  choses  in  action  which  he  holds  against 
otiier  persons,  as  bank  notes,  checks,  drafts  and  bills  of  excliango 
drawn  by  otlu-rs  and  in  his  possession.  Thus,  it  is  well  settled, 
according  to  the  cuiTciit  of  the  modern  cases,  tliat  n<'goliabU3 
paper,  such  as  hank  iiolcs,^  bonds,*  dejuwit  notes  and  crrtilicates 

R  575,  17  Viir.  R.  mW;  Walsli's  \\^-  »  W:inl   v.  Tuiii.>r,   1   Di.k.   170.  2 

pejil  (I'll.  St.),  15  Atl.  R  470;  Thomas'  Ves.  \M. 

Adm'r  v.  I^wis  (Vil,  1897).  15  S.  K.  <  Hill  v.  Chapman,  2  Bro.  C.  C.  002; 

R  '.W.);  McConii.!!!  v.  .Murray.  '.\  I.  R.  Slianl<'y  v.  Harvey.  2  lOilon.  125. 

¥.<{.  \m.  ''SiicIIktovh  v.  Hailcy.  M  Alk.  :!II; 

'MrMalion    v.   SaviiiKS    l'.aiik,   r,7  J)iini<-I.l  v.  KIwrs,  1  HIjkIi  (N.  S.).  5i:{; 

Conn.  7H.  ;M  Atl.  R  701».  AV.-lls   v.    Tiick.r,   :»  Hiiiii.  (Pa.)   '.W\ 

21)oniri    V.    I)oran.  »9  f^al.  .'Jll.  '.V.\  (IHII);  Waring  v.   Kdwurds,   11   Iml. 

Vaf\M.\\l'X     ('(jMiiiar.)  CriH!  v.  Cal.l-  (1«5H;,  12L 
well,  52  N.  J.  I^  215.  ID  All.  R  Ihm. 


1072 


LAW    OF    \VILL3. 


[§  759. 


of  deposit,^  mortgages^  and  insurance  policies,'  or  checks  pay- 
able to  the  order  of  the  donor,  or  payable  to  bearer,  inay  be  the 
subject  of  a  valid  gift  causa  mortin.*  And  negotiable  instru- 
TQcnts  payable  to  the  donor  or  to  his  order,  it  has  been  held, 
may  be  the  subject  of  a  valid  gift  causa  mortis,  even  though 
they  are  not  indorsed  by  the  donor.* 

It  is  generally  held,  however,  that  a  note  or  a  check  drawn 
by  the  donor,  or  a  bill  of  exchange  accepted  by  hira  against 
money  which  he  has  on  deposit  with  his  banker  and  pa?/aUe 
after  his  death,  does  not  constitute  a  valid  donatio  causa  Jiiortis. 
A  delivery  of  the  subject-matter  of  the  gift  during  the  life-time 
of  the  donor  is  essential  to  the  validity  of  the  gift.  In  this 
case  the  check  or  note  is  not  the  subject  of  the  gift,  but  a  mere 
order  to  pay  over  the  money  which  it  represents,  operative 
only  before  the  death  of  the  donor;  and,  on  general  principles 
of  agency,  his  death  works  a  revocation  of  the  banker's  author- 
ity to  pay.^    Thus,  where  a  person  who  had  a  certificate  of  de- 


1  Amis  V.  Witt,  33  Beav.  619;  Moore 
V.  Moore,  L.  R.  18  Eq.  474;  Hill  v. 
Stevenson,  63  Me.  364;  Pierce  v.  Sav- 
ings Bank,  129  Mass.  425;  Dean  v. 
Dean,  43  Vt.  (1871),  337;  Camp's  Ap- 
peal, 36  Conn.  (1869),  88;  Conner  v. 
Root  (Colo.,  1895),  17  Pac.  R.  773. 

2Durke  v.  Hicken,  61  Cal.  346; 
Richards  V.  Symes,  Bar  Ch.  Cas.  90; 
Hurst  V.  Beach.  5  Madd.  351;  Duf- 
field  V.  Elwes.  1  Bligh  (N.  S.),  543. 

3  Witt  V.  Amis,  1  B.  &  S.  109;  In 
re  Trough,  75  Pa.  St.  115. 

4  Turpin  v.  Thompson,  2  Mete.  (59 
Ky.,  1859).  420, 421;  Brooks  v.  Brooks, 
12  S.  C.  (1879),  422,  461;  Jones  v. 
Deyer,  16  Ala.  (1849),  221,  225;  Brown 
V.  Brown,  18  Conn.  (1847),  409,  414; 
Borneman  v.  Sidlinger,  15  Me.  429, 
431;  Burke  v.  Bishop.  27  La.  Ann. 
465,  467;  Waring  v.  Ednions,  11  Md. 
(1857),  424;  Harris  v.  Clark,  2  Barb. 
(N.  Y.)  56;  Craig  v.  Craig,  3  Barb.  Ch. 
(N.  Y.)  76,  117;  Gourley  v.  Linsen- 
bigler,  51  Pa.  St.  345,  349;  Caldwell 
V.  Renfrew,  33  Vt  213,  218;  Grover 
T.  Grover,  24  Pick.  (41  Mass.)  261 ;  Gib- 
son V.  Hibbard,  13  Mich.  214  See 
also  Blount  v.  Burrow,  4  Bro.  C.  C. 


71;  Clavering  v.  Yorke,  2  Coll.  363; 
Moore  v.  Moore,  18  L.  R.  Eq.  474; 
Dunne  v.  Boyd,  8  Ir.  Eq.  609. 

5  Rankin  v.  Weguelin,  27  Beav.  308, 
309;  Veal  v.  Veal,  27  Beav.  303;  In 
re  Mead,  L.  R.  15  Ch.  D.  651;  Brown 
V.  Brown,  18  Conn.  409,  414;  Parker 
V.  Marston,  27  Me.  (1847),  196,  204; 
Bates  V.  Kempton,  7  Gray  (73  Mass.), 
382,  383;  Crum  v.  Thornley,  47  IlL 
(1868),  192;  Tillinghast  v.  Wheaton, 
8  R.  L  536,  540:  Chase  v.  Redding,  7 
Gray  (Mass.),  382;  Stevens  v.  Stevens, 
2  Hun  (N.  Y.),  472;  Keniston  v. 
Sceva,  54  N.  H.  24,  38,  39;  Westerlo 
V.  DeAVitt,  36  N.  Y.  340;  and  see  cases 
cited  in  last  note. 

«  Graves  v.  Safford,  41  111.  App.  659, 
662,  26  AtL  R.  803;  Basket  v.  Hascall 
107  U.  S.  602;  Harris  v.  Clark,  3  N.  Y, 
93, 110;  Holmes  v.  Raper,  141  N.  Y.  64, 
66;  Copp  V.  Sawer,  6  N.  H.  386,  389 
Sanborn  v.  Sanborn,  65  N.  H.  386, 
389;  Phelps  v.  Pond,  23  N.  Y.  69 
Holley  V.  Adams,  16  Vt.  206,  210 
Hamor  v.  Moore,  8  Ohio  St.  239,  242 
Conser  v.  Snowden,  54  Md.  175,  185 
Walter  v.  Ford,  74  Mo.  195,  198;  Mc 
Kenzie  v.  Downing,  25  Ga.  609,  670 


759.] 


DONATIONS    MOKTIS    CAUSA. 


1073 


posit  for  a  sum  of  money  which  he  had  placed  at  his  banker's 
desired  to  make  a  gift  causa  Jiiortis  of  a  part  of  it,  it  "was  held 
invalid  under  the  following  circumstances:  A  friend  filled  up 
a  seven  days'  notice  to  the  bank  of  an  intention  to  withdraw  the 
amount,  which  the  depositor  signed.  He  then  signed  a  check 
*'  pay  to  self  or  bearer  the  sum  of  £500,"  which  "was  on  the  back 
of  the  notice,  and  the  paper  was  handed  to  the  donee ;  but  the 
donor  died  before  the  expiration  of  the  seven  days'  notice.  It 
was  the  custom  of  the  bank,  where  a  depositor  withdrew  a  part 
of  his  deposit,  to  give  him  a  new  certificate,  which,  of  course, 
Avas  not  done  in  this  case.  The  court  of  chancery  held  that 
there  had  not  been  a  valid  gift  causa  mortis,  inasmuch  as  the 
check  was  not  payable  until  after  the  death  of  the  donor.^ 

If,  however,  the  check  has  been  transferred  by  the  donee  to 
a  hona  fide  holder  for  value,  or  if,  prior  to  the  death  of  the 
donor,  it  has  hesii  certified  hj  the  Jjank  upon  which  it  was  drawn, 
it  will  operate  as  a  valid  gift  of  the  money  which  it  represents, 


Flint  V.  Pattee,  33  N.  H.  520;  May  v. 
Jones,  87  Iowa,  188,  198;  Blanchard 
V.  Williamson,  TO  111.  647,  632;  Parish 
V.  Stone,  14  Pick.  198,  205;  Meach  v, 
Meach,  24  Atl.  R.  r/Jl ;  West  v.  Gav- 
ins, 74  Ind.  205,  274;  Raymond  v.  Sel- 
lick,  10  Conn.  480,  484;  Brown  v. 
Moore,  3  Head  (Tenn.),  671,  673;  War- 
ren V.  Durfee,  126  Mass.  338,  341:  Hel- 
fen.stein's  Estate,  77  Pa.  St.  328;  Tate 
V.  Hilbert,  2  Ves.  Jun,  111.  4  Bro.  C. 
C.  289.  In  Byleson  Bills,  12th  edition, 
p.  170,  it  is  statfid  "  that  a  chenk 
drawn  by  the  donor  ufKtn  his  own 
banker  cannot  be  the  sub  ject  of  do- 
nation carina  mort'iH,  becaxise  tl>e 
death  of  the  drawer  is  a  revocation 
of  the  banker's  authority  to  jiuy. 
But  whcti  tlio  owner  is  deaiinj;  with 
the  chefk  of  another  man,  it  stamis 
on  entirely  the  sjime  ffKjtin;;  as  a  bill 
of  exehaiinii  or  promissory  note, 
wliich  i;jay  well  Ih)  tlie  MxWyrX  of  a 
donation  mortin  pannn.  Kor  tliis  Wi\r 
Hon  there  is  noililFcnMir-e  Iwtwecn  tlie 
check  of  another  ni.vn  and  a  bill  of 
exchange  or  promissory  n<»t<'."  "In 
mioh  a  rase  tin"  foiisiiliTiitioii  must 
be  a  valuable  one  fur  the  beuetil  of 
08 


the  promisor,  or  the  trouble,  loss  or 
prejudice  of  the  promisee.  The  note 
is  merely  a  promise  to  give.  It  is 
executory,  and  the  promisor  has  a 
locus  pciiit 071  tifc.  It  was  an  en<:age- 
ment  to  give,  not  a  gift."  Fink  v. 
Cox,  18  Johns.  (N.  Y.)  145,  147.  In 
Curry  v.  Powers,  70  N.  Y.  218,  it  was 
said:  "The  delivery  of  a  check  pay- 
able at  a  future  date  could  not  bo 
elfective  to  constitute  a  gift,  when 
the  drawing  of  a  (iheck  afterwards 
would  revoke  it,  and  when  the  checks 
in  question  were  drawn  uo  title 
vested.  Such  a  case  bears  no  anal- 
ogy to  an  order  drawn  on  a  jiarlicu- 
lar  fimd  in  pursuance  of  an  arrange- 
ment with  the  drawee,  which  order, 
on  being  shown,  is  a<lmitted  to  bo 
g(M)d,  and  wiiich  operates  as  an  i-qui- 
table  assignment."  .V  cfrti(i<'att»  of 
dciMwit  may  be  tlie  subject  of  a  valid 
gift  oawwa  viortin.  In  re  Hall's  Ins- 
tate, 3H  N.  Y.  Supp.  1135.  16  iMiw.  R 
174;  iV.rter  v.  Walsh  (lNi)5).  1  Ir.  2S4; 
SasH  v.  McC<»rmack  (.Minn.).  64  N.  W. 
K.  3H5. 

1  III  re  .Mead,  L.  K.  15  fh.  Div.  651. 


l('7i: 


LAW    OF    AYILLS. 


[§  T60. 


as  against  the  personal  representative  of  the  deceased  donor.^ 
The  donor  must  not  only  part  with  the  possession  of  the  check 
or  other  neg-otiable  instruments,  but  he  must  also  surrender  all 
his  dominion  and  control  over  them.  If  he  shall  reserve  to  him- 
self the  right  to  collect  the  interest  or  the  dividends  on  them 
during  his  life,  the  mere  giving  of  the  paper  does  not  constitute 
a  valid  gift  causa  moiiis  of  the  stocks,  notes  or  bonds.- 

§  700.  Gifts  causa  mortis  in  trust. —  It  is  well  settled  that 
tlie  article  given  may  be  delivered  either  to  the  donee  person- 
ally, or  to  another  person  to  hold  for  his  benefit  in  trust; ''  or  to 
one  person  as  a  trustee  or  agent  for  several  others.  The  person 
who  is  thus  constituted  a  trustee  must  in  turn,  either  prior  to 
or  immediately  after  the  death  of  the  donor,  transfer  possession 
to  the  actual  donee  or  carry  out  the  trust  according  to  the 
wishes  of  the  donor.* 


1  Vandermark  v.  Vandermark,  55 
How.  Pr.  R.  (N.  Y.)  408;  Sheedj'  v. 
Roach,  124  Mass.  472;  Westerlo  v.  De 
Witt,  36  N.  Y.  340,  347;  Harris  v. 
Clark.  3  N.  Y.  93,  111:  Trorliclit  v. 
Weinecker,  1  Mo.  App.  482;  Thresher 
V.  Dyer  (Conn.),  37  AtL  R.  979;  Rolls 
V.  Pearce,  L.  R.  5  Ch.  Div.  730,  W.  N. 
April  28,  1877,  p.  98;  Hewitt  v.  Kaye, 
6L.  R  Eq.  198;  Bromley  v.  Brunton, 
L.  R  6  Eq.  275;  Bouts  v.  Ellis,  4  De 
Gex,  M.  &  G.  249. 

2  Hitch  v.  Davis.  3  Md.  Ch.  266; 
Curry  v.  Powers,  70  N.  Y.  212;  Brown 
V.  Brown,  18  Conn.  410;  Dunbar  v. 
Dunbar  (Me.),  13  Atl.  R  578.  A  di- 
rection by  the  donor  to  his  agent  to 
buy  bank  stock  and  deliver  it  to  the 
donee  has  been  held  a  valid  delivery 
of  stock  given  mortis  causa.  Hatcher 
V.  Buford,  60  Ark.  169,  29  S.  W.  R  641. 

3  Caldwell  v.  Renfrew,  33  Vt.  (1800), 
213.  218;  ^IcKenzie  v.  Downing,  25 
Ga.  (1858),  669. 670;  Dresser  v.  Dresser, 
46  Me.  48;  Meach  v.  Meach,  24  Vt.  595; 
Case  V.  Dennison,  9  R  1. 88, 90 :  Jones 
V.  Deyer,  16  Ala.  (1849).  221;  Sheedy 
V.  Roach,  124  Mass.  472,  477;  Devol  v. 
Dye,  123  Ind.  321.  24  N.  E.  R  246; 
Tomliuson  v.  Ellison,  104  Mo.  105, 113; 
Loucks  v.  Johnson,  70  Hun  (N.  Y), 


565.  .566;  Clough  v.  Clough.  117  Mass. 
(1875),  83;  Coutant  v.  Schuyler.  1 
Paige,  316;  Raymond  v.  Sellick.  10 
Conn.  480;  Ellis  v.  Secor,  31  Mich. 
(1875).  185,  192;  Dole  v.  Lincoln.  31 
Me.  422;  Michener  v.  Dale,  23  Pa.  St. 
59.  Cf.  contra,  Shackelford  v.  Brown, 
89  iMo.  546.  1  S.  W.  R  390. 

4  Kulp  V.  Marsh  (Pa.  St.),  37  Atl.  R. 
913;  In  re  Hemphill  (Pa.  St.).  36  Atl. 
R  406;  Turner  v.  Estabrook,  129  Mass. 
(1880).  425,  432;  Sessions  v.  Mosely,  4 
Cush.  (58  :\Iass.,  1849),  87,  91;  Loucks 
V.  Johnson,  70  Hun  (N.  Y),  45,  47,  24 
N.  Y.  S.  267;  Walter  v.  Ford,  74  Mo. 
(1881),  195;  Baker  V.  WilUams,  34  Ind. 
547,  549;  Larrabee  v.  Hascall,  88  Me. 
511,  34  Atl.  R.  408.  In  Hills  v.  Hills, 
8  Mee.  &  Wei.  401,  where  the  donor 
gave  directions  to  the  donee  that  he 
should  pay  her  funeral  expenses  and 
retain  for  his  own  use  what  remained, 
the  court,  by  Baron  Rolfe.  said:  "I 
cannot  see  how  the  annexation  of  a 
trust  to  the  gift  can  make  any  differ- 
ence. If  it  is  lawful  to  give  the 
money  out  and  out  to  the  party  for 
his  own  use,I  cannot  see  that  it  makes 
any  difference  that  with  it  he  is  to 
pay  for  a  particular  thing.  If  a  man 
on  his  death  bed  gives  another  £1,000, 


§  761.]  DONATIONS   MOKTIS    CAUSA.  1075 

The  trust  which  has  thus  been  created  is  subject  to  the  same 
rules  as  are  all  trusts.^  If  the  precise  nature  of  the  trust  is  not 
ascertainable  from  the  expressions  of  intention  by  the  donor, 
or  if  the  beneficiaries,  or  the  shares  which  they  are  to  take, 
cannot  be  ascertained,  the  trust  will  fall  as  incapable  of  exe- 
cution. The  donee  in  trust  does  not  in  such  case  acquire  the 
property  for  his  own  benefit,  for  the  law  then  regards  him  as 
the  trustee  of  a  resulting  truat  for  the  l)enefit  of  the  dono/s  es- 
tate 

%  761.  The  character  and  burden  of  proofto  establish  a  gift 
causa  mortis. —  Xo  presumption  of  law  exists  against  the  va- 
lidity of  a  transaction  alleged  to  constitute  a  gift  mortis  causa. 
Xo  reason  exists  why  the  law  should  regard  such  gifts  with 
suspicion,  aside  from  the  opportunity  for  perjury,  which  is 
present  in  every  judicial  proceeding.  It  is  sometimes  said  that 
the  makintr  of  gifts  causa  mortis  is  not  favored  bv  the  law. 
While  the  execution  of  such  a  gift  is  much  less  burdensome, 
and  is  easier  of  accomplishment  for  a  person  on  his  death-bed 
and  ino2)s  eonsiHi,  than  the  execution  of  a  will,  still  the  pecul- 
iar fact  that  such  ante  mortem  dispositions  of  property  may  be 
established  wholly  by  oral  evidence  offers  opportunity  for  fraud 
Tlnd  perjury  which  the  statutory  regulations  governing  the 
probate  and  the  execution  of  wills  were  designed  to  avoid. 
The  circumstances  wliich  are  alleged  to  have  attended  the 
making  of  the  gift,  the  language  and  the  actions  of  all  partici- 

is  it  any  aililition  to  tlie  evils  attend-        -In  ro  Hall.  10  Mis(\  R.  174,  IW  N. 

inK  this  mode  of  l>fsto\vinf^  jiroperty  Y.  S.  Ii;i5;  Siieedy  v.  Koacii.  1'^'4  Mass. 

that  he  attaches  a  comlition  to  it,  as,  472,  477;  Larrabee  v.  Hascall,  SM  Me. 

for  instance,  tliat  he  stipulates  that  T)!!,  :{4  Ati.  H.  40,'S;  liiununi  v.  Reed, 

Ills  brotlier  shall  receive  an  outfit  for  i:J«   III.  38«.  'MH;    (iano   v.   Fisk,  4a 

India?"  A  iHjrson  making  his  will  Kave  Ohio  St.  462.     Under  the  stjitutory 

the  one  drawint;  it  a  note  of  Ins  son,  law  of   Louisiana    a    distinction   is 

to  Ini  ^fiven  to  him  if  he  did  not  ("on-  made  between  a  mod(»  or  cliar^M  and 

test  hi.s  will:  if  lie  di<i,  tobe^ivcii  to  a  condition,  as  atrc<-(iii^  a  donation. 

the  testator's  wid<»w.     The  ti'stator  Tlie  expression  of  a  pur|M)se  in  niiik- 

neveraj^ain  n-sumt'd  |)<>«s<'.HMi()ii«jf  the  inj^  a  donation  is  not  eciuivalent  to  a 

note,  thouKii   his  wift^  put  it  in  his  condition  iinposiMJ  u|)oii  it.     Hence  a 

IKH;ket-bf)ok.     Jlilil,  not  a  ^ift  cuumii  itoiititio  viords  cinisii  for  (tharitabht 

vinrltH.     WrK»<lburn  v.  Woodburn.  2:J  or   pious   uses    is    not   rev«Mal>le   in 

Hi.  App.  'J>^!»:  revers«'d,  1 J  N.  K.  K.  TiS.  favor  of  tlie  heirs  be.ause  of  the  fail- 

Vl'.i  III.  «oy;  10  N.  E.  li.  2(J!»,  I.':!  Mi.  un'of  the  donee  in  tnistto  exeitut^^ 

6<)H.  the  trust.      Sickles  v.  City  of  Now 

1  roHt,  g§  785-807.  Urlwiii.H.  mo  Immj.  H.  nm. 


107G 


LAW    OF    WILLS. 


[§  761. 


pants,  the  mental  condition  of  the  donor  at  the  instant  of  de- 
livery, and  the  relations  then  existing  between  him  and  tho 
donee,  are  all  relevant,  and  should  receive  the  closest  scrutiny. 

The  burden  of  proof  to  establish  every  necessary  fact  is  on 
the  donee,^  and,  while  the  gift  may  be  established  by  his  evi- 
dence alone,  if  it  is  strong  and  uncontradicted,  there  is  usually 
some  necessity  for  corroboration.'- 

The  declarations  of  the  donor  made  to  the  donee  or  to  those 
who  are  with  him  at  the  time  of  the  delivery  of  the  article 
given  are  admissible.*  And  a  presumption  of  the  acceptance 
of  the  gift  by  the  donee  arises  from  the  fact  that  he  will  be 
benefited  thereby.*  It  is  usually  requisite  that  the  donor  should 
have  sufficient  mental  capacity  to  understand  the  character  of 


1  Conklin  v.  Conklin,  20  Hun  (N.  Y.), 
278. 

2  Bloomer  v.  Bloomer,  2  Bradf. 
(N.  Y.)  319;  Westerlo  v.  De  Witt,  35 
Barb.  (N.  Y.)  214;  Eockwood  v.  Wig- 
gin,  16  Gray  (Mass.).  402;  Devlin  v. 
Farmer,  9  N.  Y.  Supp.  530;  In  re 
Wiegel's  Estate,  28  N.  Y.  Supp.  95,  7G 
Hun,  462.  31  Abb.  N.  C.  159:  Flood  v. 
Cain,  29  K  Y.  Supp.  156,  78  Hun,  378: 
Gibbs  V.  Carnahau,  25  N.  Y.  Supp. 
564,  28  id.  1135;  In  re  Donaldson's 
Estate,  158  Pa.  St.  292,  27  Atl.  R  959; 
Thomas'  Adm'r  v.  Lewis,  89  Va.  1.  15 
S.  E.  R.  389.  "  The  civil  law  requires 
five  witnesses  to  establish  sucii  a 
gift;  a  will  requires  two  v.-ith  us.  It 
is  diflSealt  to  suppose  that  it  was  not 
by  an  oversight  that  the  legislature 
made  no  provision  respecting  gifts 
of  this  sort:  but,  though  our  law  does 
not  define  tlie  number  of  witnesses 
required,  it  is  laid  down  in  all  the 
cases,  where  judges  have  commented 
on  the  evidence  necessary  to  sustain 
a  donation  causa  mortis,  that  it  must 
be  established  by  clear  evidence.  The 
proof  must  be  more  than  is  required 
merely  to  turn  the  scale  in  favor  of 
one  of  two  equally  probable  conclu- 
sions." McConnell  v.  Murraj',  3  Irish 
Eq.  R,  465.  That  the  burden  of  proof 
is  on  the  donee  to  establish  all  the 
essential  facts  constituting  the  gift, 


see  Lewis  v.  Merritt,  113  N.  Y.  386, 
21  N.  E.  R.  386;  Farian  v.  AVeigel,  76 
Hun  (N.  Y.),  462, 463;  Devlin  v.  Bank, 
125  N.  Y.  756;  Bick  v.  Reese,  3  N.  Y. 
Supp.  757;  Savings  Bank  v.  Look,  95 
Md.  7,  13-15;  Hebb  v.  Hebb,  5  Gill 
(Md.),  506;  Morse  v.  Meston  (Mass.), 
24  N.  E.  R.  916;  Conklin  v.  Conklin, 
20  Hun  (N.  Y.),  278,  280;  Smith  v. 
Smith  (Va.),  23  S.  E.  R.  280;  Parker  v. 
Marston,  27  Me.  196.  205;  Boudreau 
V.  Boudreau.  45  111.  480;  Smith  v. 
Downey,  3  Ired.  (N.  C.)  Law,  130. 

3  Dean  v.  Dean,  43  Vt.  337,  343.  Cf. 
Hunter  v.  Hunter,  19  Barb.  (N.  Y.) 
631. 

4  De  Le villain  v.  Evans.  .39  Cal.  120, 
122:  Devol  v.  Dye,  123  Ind.  321,  24  N. 
E.  R,  321 ;  Darland  v.  Taylor,  52  Iowa, 
503.  506;  Callanan  v.  Clement,  42  N. 
Y.  Supp.  514;  Reynolds  v.  Reynolds, 
45  N.  Y.  Supp.  338;  Leyson  v.  Davis, 
17  Mont.  220,  42  Pac.  R  775;  In  re 
Wise  (Pa..  1897),  37  Atl.  R  936.  Evi- 
dence that  when  the  donee  produced 
the  note  at  the  request  of  a  legatee 
she  said  that  it  was  hers  by  gift  is 
admissible  to  rebut  an  inference 
against  her  ownership  of  the  note 
from  the  circumstance  of  the  pro- 
duction of  it,  tliough  incomjietent 
as  evidence  of  tlie  gift.  Harris  v. 
Cable  (Mich.,  1897),  71  N.  W.  R  531. 


§  T61.] 


DOXATIOXS   MORTIS    CAUSA. 


lorr 


his  act.  This  will  usiiall}^  be  presumed  in  the  absence  of  evi- 
dence to  the  contrary.^  But  if  he  is  proved  to  have  been  lack- 
ing in  mental  capacity,  or  if  it  appears  that  the  gift  was  pro- 
cured by  fraud  or  deception,  or  under  duress,  it  will  be  set  aside.- 
In  conclusion  it  may  be  said  that  a  legacy  to  the  donee  will  be 
presumed  to  be  in  satisfaction  of  a  prior  gift  causa  mortis.  But 
the  donee  may  always  attempt  to  prove  by  parol  evidence  that 
the  testator  intended  that  he  should  take  both  the  gift  and 
the  legacy.' 


1  Van  Dusen  v.  Rowley,  8  N.  Y.  358. 

2  Todd  V.  Grace,  33  Md,  188;  Samuel 
V.  Marshall,  3  Leigh  (Va.),  5G8. 

3  "A  donatio  mortis  causa  must  be 
completely  executed  precisely  as  is 
required  in  the  case  of  a  gift  inter 
vivos,  subject  to  be  devested  by  the 
happening  of  any  of  the  conditions 
bubsequent:  that  is,  upon  actual  revo- 
cation by  the  donor,  by  his  surviving 
the  donee,  by  the  occurrence  of  a 
deficiency  of  assets  necessarj'  to  pay 
the  debts  of  the  donor.  If  the  gift 
does  not  take  effect  as  a  complete 
transfer  of  ^wssession  and  title,  legal 
or  equitable,  it  is  a  testamentary  dis- 
position, and  good  only  if  made  and 


proved  as  a  will,  .  .  .  Tlie  instru- 
ment transferring  a  chose  in  action 
must  be  the  evidence  of  a  subsisting 
obligation  and  be  delivered  to  tlie 
donee,  so  as  to  vest  him  with  an  equi- 
table title  to  the  fund  it  represents 
and  to  devest  the  owner  of  all  pres- 
ent control  over  it,  absolutely  and 
irrevocably,  but  upon  the  recognized 
conditions  subsequent.  A  delivery 
which  empowers  the  donee  to  con- 
trol the  fund  only  after  the  death  of 
the  donor,  when  bj'  the  instrument 
itself  it  is  presently  payable,  is  testa- 
mentary in  character  and  not  good 
as  a  gift."  Basket  v.  Hascall,  107 
U.  S.  601),  010,  614 


CHAPTER  XXXIX. 


ANNUITIES. 


The  apportionment  of  annui- 
ties. 

Wlien  annuities  are  payable. 

Circumstances  under  which 
the  corpus  of  a  fund  may  be 
employed  to  pay  an  annu- 
ity—  The  payment  of  ar- 
reiirs  from  surplus  income. 

Abatement  of  annuities. 

Annuities  payable  while  the 
annuitant  remains  unmar- 
ried or  while  she  is  living 
separate  from  her  husband. 


§  762.  Anniiities  defined  and  distin-    §  766. 
guished  from  rent  charges 
and  legacies.  76' 

763.  An  annuity  in  general  terms       768. 

presumed  to  be  given  for 
life  only. 

764.  Language  by  which  an  annu- 

ity in  fee  is  created  —  Rules 
regulating  the    descent  of       769. 
perpetual  annuities.  770. 

765.  The    circumstances     under 

which  the  annuity  may  be 
commuted  —  The  effect  of 
the  death  of  an  annuitant 
where  payment  is  post- 
poned. 


§  762.  Annuities  defined  and  distingnislied  from  rent 
charges  and  legacies. —  An  annuity  may  be  defined  as  a  sum 
of  money  directed  to  be  paid  yearly,  or  at  stated  times  during- 
the  year,  and  which  is  to  be  paid  to  a  person  and  his  heirs,  or 
to  a  man  for  a  term  of  years,  or  for  his  life ;  and  which,  when 
created  by  a  will,  is  payable  primarily  out  of  the  personal  es- 
tate of  the  testator;^  for  it  sliould  be  particularly  noted  that 
an  annuity  which  is  bequeathed  in  general  terms  is  a  general 
legacy;  -  like  a  legacy  it  is  paydhJe  jyimarlly  out  of  the  iiersonal 
jrroperty.^     And  the  word  "  legacies,"  when  it  is  used  in  a  will, 


iCoke,  Litt.  1445;  3  Kent,  p.  460; 
2  Bl.  Ccm.,  p.  40. 

■^Ante,  %%  390,  391. 

3Horton  v.  Cook  (1840),  10  Watts 
(Pa.),  124,  127;  In  re  Hanbest,  18  Pa. 
Co.  Ct.  R  534;  Cornfield  v.  Wynd- 
ham,  2  Collyer,  184,  187;  Sibley  v. 
Perry,  7  Ves.  522,  534;  Swift  v.  Nash, 
2  Kea  20.  Where  the  testator  be- 
queaths annuities  to  A.,  and  gives 
the  residue  of  his  property  to  B.  after 


the  payment  of  legacies  and  annui- 
ties, the  annuitants  are  not  entitled 
to  have  the  residue  converted,  and  a 
sum  to  pay  the  annuities  invested 
in  securities  approved  by  the  court. 
They  are  entitled  to  have  their  an- 
nuities secured;  as,  for  example,  by 
a  mortgage  on  the  real  estate  of  the 
testator.  In  re  Parry,  L.  R.  42  Ch. 
Div.  570. 


§  762.]  ANNUITIES.  1079 

must  be  construed  to  include  annuities.^  The  will  :nay  ex- 
pressly or  bv  implication  provide  that  if  the  personal  property 
shall  prove  insufficient  for  the  purpose  by  reason  of  it  being 
depleted  to  pay  the  debts  of  the  testator  or  other  legacies,  the 
annuities  shall  be  payable  out  of  the  ]n'occeds  of  the  real  estate 
not  specifically  devised,-  or  out  of  the  rents  of  property  given 
specifically. 

The  payment  is  then  a  rent  charge,  which  differs  from  an 
annuity,  with  which  it  is  often  confounded,^  in  that  it  is  a 
yearly  payment  which  constitutes  a  burden  or  charge  i(pon  a 
particular  piece  of  land,  or  on  land  which  is  comprised  in  a 
residuary  or  general  devise,  and  which  is  payable  out  of  the 
net  rents  and  profits  of  that  particular  land  only.  A  yearly 
payment,  which  is  directed  by  the  testator  to  be  made,  and 
whose  character  is  doubtful,  will  not  be  presumed  to  be  a  gen- 
eral annuity  rather  than  a  rent  charge,  or  an  annuity  which 
is  chargeable  upon  a  particular  fund  of  personal  property,  un- 
less the  intention  of  the  testator  to  make  it  chargeable  is  plainly 
apparent  from  the  language  of  the  will.* 

A  charge  in  favor  of  A.,  imposed  upon  lands  devised  to  B., 
will  be  a  lien  upon  the  net  profits  of  the  lands  into  whose  hands 
soever  the  lands  may  come,  either  by  descent  or  by  purchase. 
Every  purchaser  of  the  lands,  whether  he  acquire  them  b}'-  a 
sale  or  a  morto:a":e,  takes  them  cum  onere.  and  is  conclusively 
presumed  to  have  constructive  notice  of  the  charge  from  the 
fact  that  he  derives  his  title  from  one  who  takes  under  tiio 
will  by  which  the  charge  is  created,  and  the  latter  is  also  con- 
clusively presumed  to  have  actual  notice  of  the  charge.*     If 

iRudolpirs   ApiM'jil.  10   Pa.  St  34  3 o  gij^f.^.  Com..  [>.  KK 

(1848);  In  re  McCVuiih,  4  HrH(l.(N.  Y.)  <  De  Haven  v.  Sherman  i:{t  111.  115 

l.Vi;  Conifield  v.  Wyndhani,  2  Coll-  (IHffJJ),  22   N.   E.    K.  It")!;    Meiritt    v. 

y<T,  1H4,  1n7.  Huckman.  77  ^le.  'i.'h\,  2.V.);  Owens  v. 

■'Kr.'enKT  V.  Triwt  Co.,  2'.>  S.  \V.  ]{.  Clayton,  rjl}  Mil.  l.V.I;  Kol)inson  v. 
6:M;  Pierre|K.nt  v.  Kdwanls.  'iX^  N.  Y.  Towiishend.lJ  (WW  <fc  .J.  (M.l.)  418.  424: 
(18<52).  12.'>.  12H;  Nanh  v.  Taylor.  K\  Sniit  li  v.  I'ellows.  i:(l  Mass.  (ISNI).  20. 
Ind.  :J47.  \W.S\  Smith  v.  I'elU.ws.  i:n  22;  WyckoJl  v.  WyckolF.  IN  N.  .1.  Kq. 
Mii-sH.  20,22;  Davis'  ApiM-jil.  h:!  I'u.  .St.  \\'.\,  21  .Ml.  H.  287:  Larkin  v.  Ijirkin. 
:J48.  :{.-):;:  Mullins  V.  Smith.  1  Drew.  &  17  \K.  I.  (18111),  401.  2iJ  .\tl.  R.  10; 
Sm.  204,  211;  Hakor  v.  iJak.%r.O  H.  I,.  Di.kiii  v.  IMwards.  4  Hare.  27:1.  27«. 
(.'UH.  010,  «.'{2:  Uromley  v.  Wright.  7  ''Nash  v.  T.iylor.  h;{  Ind.  ;J47:  Hen- 
Hare.  :{:{4.  :no:  Di.kermaM  v.  VA-  lop  v.  (iallon.  71  111.  (1^7  1),  .VJH;  Huk- 
<Jing«r,  32  All.  IL  11,  108  I'.u  .St.  210.  bee    v.    .Sargent,    23    Me.    20»,    271; 


lUSO  LAW    OF    WILLS.  [§  763. 

the  annuitant  permits  or  ratifies  a  sale  of  a  part  of  the  land,  the 
purchase-money  for  wliich  is  to  be  appropriated  by  the  devisee 
of  the  Land  for  his  own  use,  and  accepts  as  security  for  his 
rent  charge  a  lien  on  the  part  of  the  land  unsold,  he  cannot, 
in  case  the  land  upon  which  he  has  a  lien  fails  to  produce  a 
sufficient  income  to  ])ay  his  annuity,  follow  the  proceeds  of  the 
sale  which  has  been  invested  in  other  land.^ 

§  703.  An  annuity  ill  general  terms  presumed  to  be  given 
for  life  only. —  AVhether  the  payment  of  an  annuity  shall  be 
confined  to  the  life  of  the  annuitant,  or  shall  continue  after  his 
death  to  his  heirs  or  personal  representatives,  depends  on  the 
intention  of  the  testator.  The  general  rule  by  which  a  devise 
in  indefinite  terms  is  presumed  at  common  law  to  be  for  the 
life  of  the  devisee  is  applicable  to  the  gift  of  an  annuity .^  Thus, 
if  the  testator  gives  an  annuity  to  A.  in  general  terms;  i.  e.,  if 
the  will  does  not  expressly  indicate  the  period  during  which, 
the  annuity  is  to  be  paid,  it  will  be  presumed  that  the  testator 
intended  it  to  continue  only  for  the  life  of  A.'  But  where  a 
testator,  giving  an  annuity  in  general  terms,  directs  that  his 
whole  estate  shall  be  distributed  at  the  expiration  of  ten  years 
after  his  decease,  the  rule  does  not  apply,  and  it  will  be  pre- 
sumed that  the  payment  of  the  annuity  is  then  to  cease.*  So, 
also,  a  direction  by  the  testator  as  follows:  "I  order  §500  per 

Quimby  v.  Frost,  61  Me.  77;  Nudd  v.  s  Pierrepont  v.  Edwards,  25  N.  Y. 

Powers,  13(3  Mass.  273,  277;  Amherst  128,  132,  134;  Wagstaflf  v.  Lowerre, 

Coll.  V.  Smith.  134  ^ilass.  546  (1883);  23  Barb.  (N.  Y.)  209, 217;  In  re  Casten, 

Thayer  v.  Finnegan.  134  Mass.  62,  66;  8  N.  Y.  S.  9;  Hedges  v.  Harpur,  3,De 

Aldrich  v.  Blake,  134  :\Iass.  582,  586;  Gex  &  J.  128, 137:  Potter  v.  Baker,  13 

Teazey  v.  Whitehouse,  10  N.  H.  409,  Beav,   273:    Cleveland  v.   Cleveland 

411:   Wyckoff  v.  AVyckoff,  48  Iv  J.  (Tex.),  30  S.  W.  R.  825;  Armstrong's 

Eq.  113.  21  Atl.  R.  287:  Redfield  v.  Appeal.  63  Pa.  St.  312;  Welch's  Ap- 

Ptedfield.  12  N.  Y.  S.  831.  59  Hun,  620,  peal,  28  Pa.  St.  383;  Newton  v.  Stan- 

126  N.  Y.  466;  Birdsall  v.  Hewlett,  1  ley,  28  N.  Y.  61;  Giddings  v.  Seward, 

Paige  (N.  Y.),  32,  34;  Lupton  v.  Lup-  16  N.  Y.  365;  Acton  v.  Acton,  1  Mer. 

ton,  2  Johns.  Ch.   (X.  Y.)  623:  Rogers  178;  Paget  v.  Huish,  1  Hem.  &  M.  663; 

V.   Ross,  4  Johns.   Ch.   (N.   Y.)   271;  Maun  v.  Copland.  2  Madd.  223;  Vick- 

Keiser  V.  Western.  2  N.  Y.  (1849),  500,  era  v.   Pound,   6  H    L.   Cases,   885; 

508;  Loder  v.  Hatfield,  71  N.  Y.  (1877),  Yates  v.  Maddan,  3  De  Gex,  M.  &  G. 

92,  97;    Ripple  v.    Ripple,   1   Rawle  532:  ]\Iullins  v.  Smith,  1  Dr.  &  Sm. 

(Pa.),  386;  Appeal  of  Davis,  83  Pa.  St.  204,  210. 

348;  Gilbert's  Appeal,  85  Pa.  St.  347,  *  Armstrong  v.  Crapo,  72  Iowa,  604 

351;  anfe,  §403.  (1887),  34  N.   W.   R.   437.      Compare 

1  Tabb  V.  Tabb,  83  Va.  48.  Gage  v.  Wood  (Mass.,  1898),  50  N.  E. 

SJLnfe,  §679.  R.  1040. 


§  TOJ:.]  a>;nuities.  lOSl 

annum  for  ten  years  to  be  paid  A.,"  is  an  annuity  for  ten  years, 
ov  for  the  life  of  A.  if  she  die  lefore  the  eocjnration  of  the  ten 
years,  as  there  are  no  words  of  succession.^  An  annuity  of 
§400  per  annum  to  be  paid  to  A.  "  for  and  during  the  term  of 
her  natural  life  "  for  the  supjiort  of  herself  and  daughter,  and 
when  the  latter  shall  attain  majority  her  interest  therein  to 
cease,  creates  an  annuity  for  the  life  of  A.,  the  words  referring 
to  the  daughter  iind  terminating  her  interest  only.- 

The  rule  that  an  annuity  given  in  general  terms  is  at  least 
for  the  life  of  the  annuitant  is  applied  in.  determining  the  dura- 
tion of  annuities  which  are  given  expressly /br  the  education 
and  mo 'nt<  nance  of  minors.  In  the  absence  of  an  express  di- 
rection that  the  payment  is  to  cease  with  their  majority,  the 
annuity  will  endure  for  the  lives  of  the  minor  children.^  An 
annuity  may  be  granted  payable  during  the  life  of  another  or 
during  a  term  of  years,  and  it  then  devolves  upon  the  personal 
representatives  of  the  annuitant  for  the  next  of  kin,  in  case  of 
h;s  death  during  the  period  for  which  it  is  payable.^  Where 
an  annuity  was  to  A.  for  the  life  of  B.,  on  the  death  of  A.  be- 
fore B.  the  annuity  was  directed  to  be  paid  to  A.'s  cliildren, 
where  the  testator  had  given  no  express  directions  as  to  its 
disposal.^ 

^  704.  Lancrnage  by  wliieh  an  annuity  in  fee  is  created  — 
Bules  regulating  the  descent  of  perpetual  annuities. —  An 
annuity  wliich  is  devised  with  words  of  inheritance,  as  to  A. 
and  his  heirs,  or  to  A.  and  the  heirs  of  his  hody,  is  a  perpetual 
annuity.  On  the  death  of  A.  it  will  go  to  his  hell's  by  descent, 
to  the  exclusion  of  liis  personal  representatives.  Such  an  an- 
nuity is  regarded  as  an  hereditament  and  goes  to  the  heirs  of 
the  annuitant.*  But  inasmuch  as  a  perpetual  annuity,  though 
it  is  an  hereditament,  was  by  the  rules  of  the  common  law  ne)t 
within  the  statute  de  donis^  by  which  all  limitations  to  heii-s  of 

1  Bat«>s  V.  Biiiry.  12r>  Mass.  8:5.  84.        Ky.  50  (181)0),  14  S.  \V.  It.  0.-).-..     Coti- 

2  In  n-  EnKl.-'s  KsUit«,  1.")  Pa.  Co.  Ct  tra,  Kflly  v.  ( 'asuy.  17  N.  V.  S.  80,  O'J 
R,  2«.  :n  At).  \L  7(5.  \W  I'a.  St.  'JHO.  Ilnii,  407.  Harrett,  J.,  diKMcntiuK'.     If 

'Wilkiris  v.  J(>i|<lr<'ll,  K  11.  i:5  CIl  tliis  cast*  lunl  Imm'ii  taken  lot  ho  court 

Div.  TtVA,  ."iTO.  of  apiM'als  it   woiiM   ]irolwihly  havo 

<  .Mi'tro|)i>litan  Trust  Co.  v.  Sea ver,  Ix-fii   n-vfrst'ii,  a.s   it  i.s  un<loul»ti'illy 

17  Misc.  \L   mv.  In  ro  Ord,  I>.  IL  \i  errorx-ous. 

Cli.  niv.  'J2,  •,'•'!.  "Turner  v.  Tumor.  A  ml).  770,  7><*J; 

*bUjVtiUaon'tt  Ex'ru  v.  Stevenson,  1>1  3  Kt-nt,  ]>|>.  tOO,  471;  Coku,  Lilt.  2,  a. 


10S2  LAW    OF   AVILLS.  [§  704. 

the  body  were  turned  into  fees  tail  in  the  first  taker,  a  limita- 
tion of  a  perpetual  annuity  to  A.  and  the  heirs  of  his  body  did 
not  create  a  fee  tail,  hut  gave  Mm  a  fee  conditional,  wJdch  li- 
came  ahsolute  upon  his  Jiaving  issue}  On  the  other  hand,  an 
annuity  to  "^1.  forever,''''  w'dhout  tcords  of  inheritance,  is  per- 
sonal property,  and  on  the  death  of  A.  devolves  upon  his  per- 
sonal representatives.-  And  in  either  case  a  perpetual  annuity, 
whether  with  or  without  words  of  inheritance,  is  neither  within 
the  statutes  of  mortmain,  nor  was  it  in  England  liable  to  for- 
feiture for  treason.' 

A  perpetual  annuit}^  ni^y,  even  independently  of  statute,  be 
created  in  a  will  Avithout  w^ords  of  inheritance,^  though  w^ords 
of  inheritance  may  be  required  in  a  grant.  Thus,  if  the  tes- 
tator, giving  an  annuity  in  general  terms  to  A.,  directs  it  should 
go  over  in  case  he  should  die  without  issue,^  or  if  he  confers 
the  full  power  of  disposing  of  the  fee  of  the  annuity  upon  the 
annuitant,**  or  uses  other  language  which  indicates  that  he 
intends  the  payment  of  the  annuit}^  to  continue  indefinitely 
after  the  death  of  the  first  taker,  it  will  be  perpetual.'^ 

In  the  case  of  a  gift  of  an  annuity  to  A.  in  fee,  and,  if  A. 
shall  die  without  leaving  issue  him  surviving,  then  to  B.  in  fee, 
the  limitation  to  B.  is  valid  as  an  executory  devise  after  a 
definite  failure  of  issue,  though  annuities  given  by  will  are 
customarilv  governed  bv  and  construed  according  to  the  rules 
regulating  devises,^  The  rule  of  construction,  by  which  the 
words  '"''leaving  issue''''  are  construed  '•'■  having  issue ^''  so  that 
the  parent  is  vested  with  a  fee  simple  upon  having  issue,^ 
though  he  may  die  leaving  no  issue,  is  not  applicable  to  an- 
nuities. An  annuity  to  A.  in  general  terms,  with  a  gift  over 
on  his  death  "  without  leaving  issue,"  is  defeated  by  his  death 

1  Co.  Litt.  2,  a.  Mansergh  v.  Campbell,  25  Beav.  544, 

2 Taylor  v.  Martindale,  12  Sim.  158,  3  De  Gex  &  J.  232;  Stokes  v.  Heron, 

161.  12  CI.  &  Fin.  161,  179, 190.  192;  Kerr 

3  2  Black,  Com.,  p.  40;  Coke,  Litt.  v.  Hospital,  2  De  Gex,  M.  &  G.  575, 

20,  144;  Potter  v.  Baker,  2  Eng.  L.  &  589.     In  this  last  case  the  testator 

Eq.  92,  94,  13  Beav.  273;  Parsons  v.  directed  his  residuary  estate  to  be 

Parsons,  L.  R.  8  Eq.  260.  laid  out  in  the  purchase  of  an  annu- 

*Ante,  %  684.  ity  lor  a  hospital. 

5  Hedges  \.  Harpur,  3  De  Gex  &  J.  **  Bradhurst  v.  Bradhurst,  1  Paige 

129;  Pawson  v.  Pawson.  19  Beav.  146.  (N.  Y.),  331. 

«  Robinson  v.  Hunt,  4  Beav.  450.  ^Ante,  %  363,  p.  499,  and  §  566. 

"Drew  V.  Barry,  L.  Pu  7  Eq.  413; 


§§  705,  70G.]  ANNUITIES.  1083 

leaving  no  issue  surviving,  though  he  had  issue  which  did  not 
survive.^ 

§  765.  The  circumstances  under  wliicli  the  annuity  may 
he  commuted  —  The  eifect  of  the  death  of  annuitant  where 
payment  is  postponed. —  If  the  testator  directs  an  annuity  to 
he 2>aid  out  of  a  specified  portion  of  his  estate,  or  to  Jjc paid  gen- 
eralhj  by  trustees  or  executors,  they  have  no  implied  power  to 
commute  it  for  a  gross  sum.-  Eut  when  the  testator  directs 
his  executor  or  a  trustee  to  invest  a  stated  sum  in  the  j>archase 
of  an  annuity^  the  sum  which  is  thus  directed  to  be  paid  is  a 
pecuniary  legacy  vesting  at  the  death  of  the  testator,  and  the 
person  for  whom  the  annuity  is  to  be  purchased  ma}^  consent 
or  demand  that  it  be  paid  to  him  at  once.^  If  the  purchase  and 
payment  of  the  annuity  are  postponed  by  the  trustee  for  the 
convenience  of  the  estate,  or  are  to  take  place  after  the  termi- 
nation of  a  life  estate,  the  annuity  being  vested,  and  the  annui- 
tant dies  before  it  is  purchased,  the  sum  wliich  was  to  purchase 
the  annuity  must  then  be  paid  to  his  heirs  or  personal  repre- 
sentatives,* according  to  the  character  of  the  annuity  which 
was  to  be  purchased.'^ 

§  7C8.  The  apportionment  of  annuities. —  At  the  common 
law  and  in  equity,  in  the  absence  of  statute,  life  annuities  are 
never  apportionable.  If  the  person  to  whom  the  life  annuity 
is  devised  shall  die  between  the  dates  upon  which  the  annuity 
is  payable,  his  personal  representatives  cannot  recover  that  por- 
tion of  the  annuity  which  was  due  the  annuitant  from  the  time 
of  the  last  payment  to  the  date  of  his  death.'* 

I5ut  life  annuities  which  are  })ayable  to  the  widow  of  the 

Un  re  Hemingway,  L.  R.  45  Cli.  815;   Day  v.  Day,  1  Drew.  .W.t,  r.74; 

Div.  4."):;.  Hayley  v.  Bisliop,  9  Ves.  «. 

^  Hayley  v.  liayley,  9  Ves.  0.  •''  This  rule  is  of  manifest  advanta^o 

'  Yatf'.s  V.  Compt^m,  2  P.  Wms,  liOH;  to  tlie  re|)resentatives  of  a  life  annu- 

Palmer  v.  Crauford,  3  Sw.  482.  4HH;  itant  wlio  dies  before  the  annuity  is 

Day  V.  Day,  1  Drew.  569,  574:  Yates  jmrchased.     They  stand  in  his,|)Iaee. 

V.  Yates,  28  B««iv.  6;{7,  041;  P'ord  v.  and  liis  right  to  elect  between  the 

Batley,  17  H<?av.  '■W.\:  In   re   lirown's  annuity  and  the  gross  sum  |iasst>s  to 

Will.  27  I'eav.  :{2!(;  Dawson  v.  llearn,  them.    Of  course  if  he  has  elected  to 

1  Huss.  He  My.  '50(1.  take  the  annuity  and  it  has  iieen  jiur- 

*  Harnes  V.  IJowley,  1  Vea  .'{O.")-.  Daw-  cluised,  and  he  has  rect-ivi'd  it  for  his 

w>n  V.  Hearn,  1  Rush,  (t  My.  (lotj,  (H2.  life,  they  laiinof  claim  tin- gross  sum. 

6i:?:  I'almer  v.  Craiiff.rd.  :{  Sw.  4H2.  "Tracy   v.   Slmng,   2  Conn.  (INIS). 

4":);   Hunt  V.  KurlMT,  1-.  K.  :5Ch.  Div.  ('m9.  «i(il;    Ihi/.-r  v.   Meizer.  71    Ind. 

Ijs.-,.    I',.:, I-.... 11    V,     |)..lin:iii     \,    I.'    :\   I'm        (|s^(h,    ."i  .'fi,    .".J'!;     Naliliu'    v.    Na.linu', 


KKSi  LAW    OF    WIIXS.  [§  767. 

testator,  i)artieuUirly  if  they  are  given  hi  lieu  of  doicer,  or  if 
given/b;'  het'  su2>2)0i%  are  in  many  respects  favored  by  the  law. 
They  are  apportionable  npon  the  death  of  the  annuitant,  and 
the  amount  then  due  to  her  should  be  paid  to  her  personal  rep- 
resentatives.^ And  many  authorities  maintain  that  an  annuity 
for  her  life  which  is  payable  to  a  married  woman,  who  is  living 
apart  from  her  husband,  for  her  support  and  maintenance^  or  an 
annuity  for  the  support  and  maintenance  of  minor  children^  is 
likewise  apportionable.^ 

§  767.  ^Vheii  annuities  are  payable. —  An  annuity,  like  a 
legacy,  in  the  absence  of  a  contrar}'  intention  clearly  expressed, 
vests  at  the  death  of  the  testator.  Independently  of  statute 
the  first  payment  sliould  be  made  at  the  expiration  of  one  year 
after  that  date,  unless  the  testiitor  has  directed  that  it  should 
be  made  at  another  time.'  This  is  so  even  where  the  will  di- 
rects a  conversion  of  land  into  money  which  is  to  constitute  a 
fund  from  the  income  of  which  the  annuity  is  to  be  paid,  and 
a  sale  is  not  made  until  sometime  after  the  death  of  the  tes- 
tator.^ But  an  annuity  payable  to  the  widow  of  the  testator, 
or  to  a  minor  for  his  maintenance  and  support,  constitutes  an 
exception  to  this  rule,  and  its  payment  should  hegin  with  the 
death  of  the  testator.^ 

137  Ind.  261,  280;  Wiggin  V.  Swett.  6  236;    :^roo^e   v.   Alden,   80  Me.   301; 

Mete.  (47  Mass.)  194.  201;    Chase  v.  Blight  v.  Blight,  51  Pa.  St.  420;  Rhode 

Darby  (Mich.,  1896),  68  N.  W.  R.  159;  Island  Hospital  Trust  Co.  v.  Harris 

Manning  v.  Rudolph,  4  X.  J.  L.(1818),  (R.  I.),  37  AtL  R.  701:  Irvine  v.  Ran- 

144;  In  re  Lackawanna,  I.  &  T.  Co.,  kine,  13  Hun  (N.  Y.),  147.  149;  Parker 

37  N,  J,  Eq.  126;  Griswold  v.  Oris-  v.  Seeley  (N.  J.,  1897),  38  AtL  R.  280. 

wold,  4  Bradf.  (N.  Y.)  216;  Irvine  v.  2Sweigert  v,  Frey,  8  S.  &  R.  (Pa.) 

Rankine,  13  Hun  (N.  Y.),  147,  149;  299;  In  re  Lackawanna  Co.,  37  N.  J. 

Kearney  v.  Cruikshank,  117  N.  Y.  95  Eq.  126;  Howell  v.  Hanforth,  2  W.  Bl. 

(1889),  22  N.  E.  R.  580:  Dubbs  v.  Wat-  1016. 

son,  2  Pa,   Dist.  R.   115:  Waring  v.  3  Crew  v,  Pratt  (Cal.,  1897),  51  Pac. 

Purcell,  1  Hill  (S.  C.)  L,  199;  Hay  v.  R  44,  46;  Kearney  v.  Cruikshank,  117 

Palmer.  3  P,  W,  501;  Jenner  v.  Mor-  N,  Y,   95;    Cleveland    v,   Cleveland 

gan,  1  P,  W.  392:  Franks  v.  Noble,  12  (Tex.),  30  S.  W.  R.  825;  McDonald's 

Ves.  484,  490;  Weigall  v.  Brome.  6  Appeal  (Pa.,  1888),  12  AtL  R.  478;  In 

Sim.  99;  Ex  parte  Smith,  1  Sw.  349;  re  Eichelberger's  Estate,  170  Pa,  St. 

Leathey  v.   French,  8  Ir.   Ch.  401;  242;  anfe,  §g  424-426. 

Thackers  Trusts,  28  L,  T.  (N.  S.)  56,  *Curran  v.  Green.  18  R.  L  329,  27 

In  some  of  the  states  annuities  are  AtL  R.  596. 

apportionable  by  statute.    See  Acts  *  Weld  v.  Putnam,  70  Me.  209;  Craig 

N.  Y.  1875.  ch.  542.  v.  Cruig,  3  Barb.  Ch,  (N.  Y,)  76. 
1  Richardson  v.  Hall,  124  Mass,  228, 


§  TG7.] 


ANNUITIES. 


1085 


An  annuity,  unless  otherwise  stated,  is  payable  yearly,  and 
the  court  may  insert  the  Avords  "j)^/'  annum  "  in  a  direction  to 
pay  an  annuity,  Avhere  the  manifest  intention  of  the  testator 
calls  for  it.'  The  same  general  rules  are  applicable  to  the 
payment  of  sums  of  money  "which  are  not  annuities  properly 
speaking,  but  rent  charges  payable  by  devisees  of  land.- 

The  testator  may,  and  in  many  cases  does,  direct  that  the 
annuity  shall  be  paid  at  a  particular  time  or  at  certain  periods, 
as  quarterly,  monthly,  or  otherwise.  In  case  of  abundant  per- 
sonal assets  to  meet  debts  and  legacies,  an  executor  may  be  jus- 
tified in  paying  an  annuity  not  charged  on  land,  which  the 
testator  has  directed  him  to  pay  monthly,  at  the  expiration  of 
the  first  month  after  the  death  of  the  testator;^  but  he  does 
so  at  his  own  risk,  and  may  have  to  refund  it  if  there  shall  be 
a  deficiency  of  assets.  The  customary  and  better  rule  is  to 
make  the  first  payment  at  the  end  of  one  year  from  the  death 
of  the  testator,  whether  the  annuity  be  payable  quarterly  or 
otherwise.* 


1  Hellermann's  Appeal,  115  Pa.  St. 
120,  8  Atl.  R.  768. 

2  An  annuity  payable  for  seven 
years  in  semi-annual  instalments, 
•■  the  first  as  soon  after  my  decease 
as  sufficient  funds  for  the  purpose 
shall  come  into  the  possession  of  the 
executors,  and  the  remaining  ones 
at  the  end  of  every  six  months  there- 
after," begins  to  run  at  the  decease 
of  the  testator  under  statute  (Civil 
Code,  sec.  lo(j8)  providing  that  aimu- 
ities  commence  at  the  decease  of  the 
testator.  Crew  v.  Pratt  (Cal,  181)7), 
51  Pac.  R  41. 

3  Waring  v.  Purrvll,  1  Hill  (S.  C  ) 
Eq.  IW.  Where  an  annuity  is  to  b») 
jKiid  on  the  first  day  of  April  in  each 
year,  the  first  jMiyment  must  l»e  made 
on  that  first  day  of  April  wliich  oc- 
curs after  the  annuity  ha.s  vested,  no 
matter  liow  soon  tliat  may  bo,  if  it 
bo  at  h-ast  ono  liay  aft«'r  the  devise 
liaH  gone  into  ntfiM-t.  Cray  v.  Herder, 
40  N.  J.  liA\.  41(5.  Hi  Atl.  \L  m'). 

« Uall  v.  Uall,  3  McCord  (S.  C,  lb27j, 


Eq.  281;  Griswold  v.  Griswold,  4 
Bradf.  (N.  Y.)  216;  ^IcDonald's  Ap- 
peal (Pa.,  1888),  12  Atl.  R.  478;  Storer 
T.  Prestage,  3  Madd.  167;  Williams  v. 
Wilson,  5  N.  R.  267;  Gibson  v.  Bott, 
7  Ves.  96,  97;  Astley  v.  Essex,  6  L.  R, 
Ch.  App.  898;  Rawson  v.  McCausland, 
7  Ir.  R.  Eq.  284.  Contra,  Wiggin  v. 
Swett,  0  3Iet.  (Mass.)  194.  In  a  re- 
cent case  it  was  held  that  an  annuity 
payable  out  of  the  income  of  real  and 
jRTsonal  property,  but  with  no  time 
fixed  for  its  periodical  payments, 
(night  to  be  paid  (juarterly,  upon  the 
jiri'siimption  tiiat  tiie  rents,  which 
comiKisi'd  the  larger  part  of  the  fund 
u|>on  which  it  was  charged,  wi-ro 
j)ayable  (juarterly.  Reed  v.  Cruik- 
shank,  46  Hun,  219.  But  a  legacy  to 
the  widow  of  "an  income  in  cash  of 
$1,20(J  a  ye<ir  during  her  life  "  is  pay- 
able annually,  and  not  at  ]M>riods 
during  the  current  year  at  tiie  dis- 
cretion of  the  c.xecutorH.  Anthony 
V.  Anthony,  11  AtL  R.  40,55  L'ouu. 
300. 


lOSG  LAW    OF    WILLS.  [§  768. 

§  76S.  Ciroumst.ances  uiuler  wliich  tlie  corpus  of  a  fuinl 
mny  be  employtMl  to  pay  an  annuity  —  The  payments  of  ar- 
rears from  surplus  income. —  The  g-eneral  rule  is  that  a  gift  of 
the  net  rents  or  profits  of  the  kind,  or  of  the  interest  or  income 
of  a  sum  of  money,  is  a  gift  of  the  corjms}  But  the  gift  of  an 
annuity,  though  payable  out  of  net  income,  or  net  profit,  or  an- 
nual profits,  is  a  demonstrative  legacy  with  a  direction  pointing 
out  the  source  from  which  it  is  to  be  paid.-  The  only  interest 
Avhich  the  annuitant  takes  in  the  income  and  profits  is  the  amount 
irhich  is  directed  to  he  paid  to  him. 

Whether  the  annuity  shall  be  paid  out  of  the  fund  itself,  in 
case  the  net  income  or  profits  of  the  fund  are  insufficient  to 
pay  the  annuity,  depends  wholly  upon  the  intention  of  the  tes- 
tator as  expressed  in  the  will.  "Where  the  annuity  is  given  in 
general  terms  Cthat  is  to  say,  where  no  particular  fund  is  men- 
tioned from  which  it  shall  be  payable),  it  is  a  general  legacy, 
and  the  annuitant  may  claim  to  have  a  sum  set  aside  out  of 
the  corpus  of  the  personal  property  left  by  the  testator  which 
will  produce  the  annuity.  The  title  of  the  residuary  legatee  is 
postponed  to  the  claim  of  the  annuitant.'  The  same  rule  as  to 
the  liability  of  the  personal  property  is  applied  where  the  tes- 
tator directs  the  executor,  in  general  terms,  to  purchase  an  an- 
nuity of  an  amount  specified,  or  to  invest  a  sum  which  will 
produce  an  annuity  of  a  specified  amount,  and  the  executor 
invests  what  he  considers  a  sum  sufficient  for  that  purpose,  but 
which  for  any  reason  ultimately  proves  insufficient  or  inade- 
quate to  purchase  the  annuity  mentioned.  Under  these  cir- 
cumstances, where  the  corpus  of  the  personal  property  after  the 
purchase  of  the  annuity  is  devised  to  the  residuary  legatee,  the 
corpus  of  the  personal  property  will  be  liable  for  the  payment 
of  the  annuity,  so  far  as  the  income  of  the  sum  set  aside  proves 
insufficient.*   Here  it  may  be  remarked,  in  spite  of  some  lack  of 

1  See  §  692.  of  all  personal  property  to  A.,  by  im- 

-  Ante,  §  406.  plication  gives  the  annuitant  a  right 

3  Richardson  V.Hall,  124  Mass.  (1898),  to  be  paid  out  of  the  real  property. 

228,  237;  Semple's  Estate  (Pa.,  1899),  In  re  Nathan's  Estate.  16  Pa.  Co.  Ct. 

42  Atl.  R.  28;  Carmichael  v.  Gee,  5  R  223.  4  Pa.  Dist.  R.  149;  Id.,  36  W. 

App.  Cases,  588;  Gee  v.  Mahood,  L.  R  N.  C.  184. 

11  Ch.  Div.  891,  897;  Wright  v.  Cal-        ^  Boonihover  v.  Bassett,  67  Vt.  327, 

lender,  2  De  Gex,  Mac.  &  G.  652,  656;  31  Atl.  R.  838;  Merritt  v.  ^lerritt,  48 

ante,  §  395.    But  a  specific  bequest  N.  J,  Eq.  1,  21  AtL  R  128;   In  re 


§  T6S.]  ANNUITIES.  luST 

harmony,  thiit  it  seems  that  a  gift  of  the  interest  on  a  sxim  of 
money  named  is  not  an  annuity  equal  to  the  interest  on  such 
sum  at  the  current  legal  rate  of  interest,  but  it  is  a  legacy  of 
the  actual  interest  only.  If  the  whole  estate  turns  out  less 
than  the  sum  named,  or  if  the  interest  actually  received  does 
not  equal  the  interest  calculated  at  the  current  rate,  the  annui- 
tant is  not  entitled  to  have  the  deficiency  made  up  out  of  the 
cor_pus.  But  he  is  actually  entitled  to  the  interest  of  the  sum 
named  whatever  it  may  be.^  If  the  executor  is  b}"  the  testator 
directed  to  pay  an  annuity  of  a  certain  amount  out  of  the  in- 
come of  the  personal  property  invested,  or  which  he  is  directed 
to  invest  and  hold  as  a  special  fund,  with  a  gift  to  other  per- 
sons than  the  annuitant  of  the  surplus  of  the  income  beyond 
the  payment  of  the  annuity,'  or  if  he  is  directed  to  divide  the 
corjpus  among  or  pay  it  to  others,  icith  all  accumulations  of  the 
income,  at  the  termination  of  the  annuity,  the  annuitant  will 
be  regarded  in  the  nature  of  a  life  tenant;  and  in  case  of  a  de- 
ficienc}'  in  the  annual  income,  he  will  not  be  entitled  to  have 
that  deficiency  made  good  out  of  the  corj>us,^  nor  out  of  a 
subsequent  surplus  of  the  income. 

But  if  the  testator  has  made  no  distinct  disposition  of  the 
surplus  of  the  income,  so  that  it  devolves  upon  his  next  of  kin 
as  unbequeathed  perse  nal  property,  an  annuitant,  whose  an- 
nuity has  been   diminished  fur  several  years  becaus:)  of  the 

Deais,  16  Pa.  Co.  Ct.  R.  37,  1G9  Pa.  St.  32  Beav.  194;  Darbon  v.  Kiclianis,  U 

4:}0,  32  AtL  R  430;  Curran  v.  Green,  Sim.  mi. 

18  R  L  329.  27  Atl.  R  590;  Briy;ht  v.  Hiiinnell  v.  Baker.  17  R  I.  4  (1890), 

Lurcher.  3  DeGex«&. Jo.  148:  \Vrif?ht  23  Atl.    R   911;    Einbecker  v.   Kiu- 

V.  CalleiKler,  2  De  (Je.x.  M.  &  (J.  <):.2.  becker.  Ifj2  111.  267,  272.  27."»,  44  N.  E. 

605;    May  v.   Bennett.   1   Ku-ss.    37U;  R  426;  Irwin  v.  Wollpert.  12H  111.  .')27 

Perkins  v.  C<x.ke.  2  Jo.  &  Hem.  393;  (1889).  21  N.  E.  R  501;    De  Haven  v. 

Miner  v.  Bal.Uvin.  1  Sm.  &  (iif.  522;  Sherman,  131  111.  (1H96).  IIT):  S.-eurity 

In  re  Tucker  (Ih'j;}),  2  Ch.  'tl'.i.  Co.  v.  Cone.  64  Conn.  57!»;  Delaney  v. 

llJeiuney  V.  Van.Anlen.H4N.  Y.  16;  Van  Aulen,  84  N.  Y.   16;    Mason  v. 

lio>jiU  V.  Aniennan.  4   Hra«lf.  (N.  Y.)  Itoliinsun,  L.  R  H  Ch.  Div.  411;  Cum- 

129;  Whit.vni  V.  Whitson.  MN.  Y.  47;  minKH  v.  CunnninKs,  146  Mass.  501; 

In  re  Dewey's  Kstati%  46  N.   R   R  Atlorney-(Jeneral  v.  Ponlden.  3  Hare 

1039,  l.'*;{  N,  Y.  63.  67,  reversing  31  N.  ."lm;  Miller  v.   Huil<ll<s(ono,  17  Sim. 

\.  Snpp.  2.M,  H2  Hun.  426,     Cimtm,  71.  3  Mac.  &  <:.  .".13;  Mit<hcll  v.  Wil- 

Brimblwomo    v.    Haven.    12   Cubh.  ton.  VV.  IJ.  7h'.»;  Hak.-r  v.  Baker.  6  11. 

(Mass.)  511.  L.  t'as.  616;   Foster  v.  Smith,  1  Phil. 

2  Brewster's  Apin-ai   (Pa..  IHHM).    12  629;   Forbes  v.  Itichanlson.  II   Hare, 

Atl.  I{.  470:  Stelfox  v.  SuK<len..ioluiH,  311;  IC.irl  v.  Hillin>,'ham,  21  Beav.  445. 
(Engli.sii).  235;  She|i|iar'l  v.  Shepp;ir.l, 


loss  LAW    OF    WILLS.  [§  7t3S. 

deficiency  of  income,  is  entitled,  Avhen  tlie  income  subsequently 
proves  more  than  sufficient,  to  have  his  arrears  made  good  out 
of  the  surplus  before  its  distribution  among  the  next  of  kin.' 
Everything  depends  upon  the  language  which  has  been  em- 
ployed by  the  testator.  If,  from  his  language,  it  is  clearly  ap- 
parent that  he  intended  that  a  deficiency  in  the  income  should 
be  made  up  out  of  the  capital  of  the  fund,  the  court  will  not  hesi- 
tate to  carry  that  intention  into  effect.  Thus,  for  example,  if 
he  directs  an  annuity  to  be  paid  out  of  the  income  of  the  es- 
tate in  such  definite  and  absolute  terms  as  to  show  that  its 
payment  is  in  no  Avise  to  dei)end  upon  the  amount  of  the  in- 
come, and  then  makes  a  general  or  residuary  gift  of  the  corpus, 
'•'■after  the  payment  of  the  annxdty^''  or  "  suhject  to  "  its  ixtyment, 
it  will  be  presumed  that  the  corpus  of  the  estate  should  be  ap- 
plied to  paying  the  annuity,-  Where  the  testator  gives  an 
annuity,  and  it  clearly  appears  that  it  was  his  desire  and  in- 
tention to  make  a  definite  and  certain  provision  for  the  sup>port 
of  the  annuitant^  the  annuity  is  an  absolute  charge  upon  the 
corpus  of  the  estate.  In  such  a  case  its  payment  does  not  de- 
pend upon  the  amount  of  the  income  exclusively,  though  the 
testator  may  have  given  directions  for  investing  the  property, 
and  may  have  alluded  to  its  paj^ment  out  of  the  income  thus 
produced.^  This  principle  is  particularly  applicable  to  the  case 
of  an  annuity  payable  to  the  widow  of  the  testator,  and  to  an 
annuity  out  of  the  income  of  the  residue,  where  the  residuary 

1  In  re  Chauncey.  119  X.  Y.  77,  23  Johns.  Ch.  (N.  Y.)  61;  Justice  v.  Jus- 

N.  K  R  448,  reversing  6  N.  Y.  S.  183;  tice    (N.   J.,   1898),  20   Atl.   R.   208; 

Delaney  v.  Van  Aulen,  84  N.  Y.  16;  Quinby  v.  Frost,  61  Me.  277;  Curran 

Bradlee  v.  Andrews,  137  Mass.  50,  57:  v.  Green,  18  R.  I.  329,  27  Atl.  R  596; 

Craves  v.  Hicks,  11   Sim.   530,  555;  Picard  v.  Mitchell,  14  Beav.  103,  104; 

Booth  V.  Colton,L.  R.  5  Ch.684;  Tay-  Hobson  v.  Neale,  17  Beav.  178,  182; 

lor  V.  Taylor,  L.  R.  17  Eq.  324.    Com-  Phillips  v.  Gutteridge,  4  De  G.  &  Jo. 

pare  contra,  Bre\v>?ters  Appeal  (Pa.,  531,  536;   Howarth  v.   Rothwell,  30 

1888),  12  xVtL  R  467,  470.  Beav.  516;  Birch  v.  Sherratt,  2  L.  R. 

2Comstock  V.  Herron,  5  C.  C.  A  Ch.  App.  644;  Gordon  v.  Bowman,  6 

206,  6  U.  S.  A.  626,  55  Fed.  R  803;  Madd.  342;    Swallow  v.  Swallow,  1 

Xash  V.  Taylor,  83  Ind.  349;  Lindsey  Beav.  4-32 ;  Play  fair  v.  Cooper,  17  Beav. 

V.  Lindsey,  45  Ind.  552;  Davis'  Ap-  187,  190;   Addecott  v.  Addecott,  29 

peal,  83  Pa.  St.  348,  353;  Gilbert's  Ap-  Beav.  460;  Perkins  v.  Cook,  2  Jo.  & 

peal,  85  Pa.  St.  347,  351;  Degraw  v.  Hem.  393. 

Gleason.  11  Paige  (N.  Y.),  136;  Sher-        ^Additon  v.  Snith,  22  Atl.  R  470, 

nierhorn  v.  Shermerhorn,  6  Johns.  (N.  83  Me.  551. 
Y.)   Ch.   70;    Lupton    v.    Lupton,  2 


§§  T69,  YTO.]  ANNUITIES.  1089 

disposition  which  is  to  take  effect  after  the  death  of  the  an- 
nuitant fails  and  the  corj)us  goes  to  the  next  of  kin  as  in  in- 
testacy.^ 

§  760.  Abatement  of  annuities. —  "Whether  the  annuity  is 
payable  yearly  or  at  some  shorter  interval,  the  amount  which 
may  be  payable  as  a  first  instalment  will  not  bear  interest  from 
the  death  of  the  testator.^  If  it  is  the  manifest  intention  of  the 
testator  that  the  corpus  or  capital  shall  be  applied  to  paying 
annuities  in  case  of  a  deficiency  in  the  income,  and  the  capital 
also  proves  insufficient  to  pay  all  annuitants  the  full  amounts 
due  them,  it  must  be  apportioned  among  them  j^ro  rata,  accord- 
ing to  the  value  of  their  annuities.'  The  value  of  the  annuity 
of  a  deceased  annuitant  will  be  presumed  to  be  the  amount  in 
which  his  annuity  was  in  arrears  at  his  death,  and,  if  all  are 
dead,  the  fund  ought  to  be  divided  pro  rata  according  to  the 
amounts  of  the  several  arrears.^  In  case  all  the  claimants  are 
living,  the  value  of  each  annuity  ought  to  be  calculated  as  of 
the  date  of  the  death  of  the  testator,  and  the  fund  divided  in 
accordance  therewith.^ 

§  770.  Annuities  payable  while  tlie  annuitant  remains  ini- 
inarried,  or  while  she  is  living  separate  from  her  husband. — 
The  general  considerations  ap})lieable  to  devises  and  lega- 
cies upon  condition  that  the  beneficiary  shall  not  marry,  and 
which  are  elsewhere  fully  stated,®  are  applicable  to  annuities 
which  are  ]>;iyable  while  the  annuitant  remains  unmarried. 
Thus,  it  is  well  settled  that  an  annuit}''  given  by  the  testator  to 
bis  widow  while  she  remains'  unnuirried  or  until  her  marriajre 
is  valid.^     And  it  has  also  been  held  that  an  annuity  to  a  nuir- 

1  In   n;  CVxjfKir'.s  Est.'ito,  1 17  P:i.  St.  301;  Tiiylor  v.  Taylor,  8  Ilaro,  !','(); 

S22,  2;J   Atl.  H.  4.jG;  Mooro  v.  Aldeii,  Tone  v.  Hrowiio.  5  II.  L.  C'as.  .Vm;  Hat- 

80  Me.  :i01,  14   Atl.   R   1«9.     An  an-  t..-ii  v.  Earnley,  3  P.  Wins.  l(i;{;  aiiti\ 

nuity  wliicii  i.s  oxpresHly  (iirccte^l  to  ^  43r). 

Ih;  puid  out  of  any  money  of  tlio  es-  ^  \Vrou>.;iiton   v.  ( '<)li|iiiiiMiii,    1   I  )o 

tutti  which  may  cohk;  into  the  luinrl.s  fiex  &  Sni.  IJ.jT;  Todd   v.  Uielby,  37 

of  the  executor,  and  the  lirst  instal-  lieav.  ariO;  iinti',  %  3i)0. 

ment  of  wliich  in  to  Im3  paid  as  Hoon  *Todd  v.  Hielhy,  37  Heav.  'AhW,  350. 

aft^.-r  tho  decease  of  tlio  te.stator  as  *To<lil  v.  Hiolliy,  37  Ueav.  '^W\  350; 

hufllcient  funds  cotno  into  the  hands  Wilkiiis  v.  Udthcram,  I^  It.  37  Cli. 

of  the  truste*;,  is  a  eharj;u  UfMrn  the  l)iv.  703;  Ih.itii   v.  NuKent,  31)  Ikuiv. 

crirpuM.     Crew  V.  PnitKCal.,  1H'J7),  51  330. 

Pao.  R  44.  40.  '^Atitr,  ^  111  I. 

^Anderson  v.  Dwyer,  1  Sch.  &  L.  7  Knight  v.  Cameron,  M  Ves.  3«8; 


1000 


LAW   OF   WILLS. 


[§  770. 


ried  woman,  payable  to  her  while  she  is  living  separate  from 
her  husband,  if  it  is  the  sole  intention  of  the  testator  to  provide 
for  her  comfortable  support  and  maintenance  while  she  is  de- 
prived of  a  share  in  her  husband's  income,  is  valid  where  the 
parties  were  living  apart  at  the  date  of  the  execution  of  the 
will.i 


Reynish  v.  Martin,  3  Atk.  330;  Clarke 
V.  Parker,  19  Ves.  13;  Crawford  v. 
Thompson,  91  Ind.  266:  Parson  v. 
"Winslow,  6  :Me,  169. 

1  Cooper  T.  Remsen,  3  Johns.  Ch. 
(N.  Y.)  382,  521,  5  Johns.  Ch.  (X.  Y.) 
4.59.  Compare  cases  cited  under 
§§  .505.  50a  In  Heath  t.  Lewis,  3  De 
G..  M.  &  G.  954  (1S53),  Bruce  said: 
*•  It  must  be  agreed  on  all  hands  that 


it  is  competent  for  a  man  to  give  a 
single  woman  an  annuity  until  she 
shall  die  or  be  married,  whichever  of 
these  tvro  events  shall  happen  first. 
All  men  agree  that  if  such  a  legatee 
shall  marry  the  annuity  would  cease. 
'During  the  term  of  her  natural  life, 
if  she  so  long  remains  unmarried,'  is 
the  technical  and  proper  language  of 
limitation."    Ante,  §§  505,  506. 


CHAPTER  XL. 

TESTAMENTARY  USES,  TRUST  ESTATES  AND  POWERS. 


5  771.     The  origin  and  early  employ- 
ment of  uses. 

772.  The  exceptions  to  the  Eng- 

lish statute  of  uses  —  Stat- 
ute does  not  apply  to  chat- 
tels. 

773.  Active  uses  are  not  executed 

by  the  statute. 
774     Uses  for  tlie  benefit  of  mar- 
ried women  are  not  exe- 
cuted by  the  statute. 

775.  A  tLse  upon  a  use  is  not  exe- 

cuted by  the  statute. 

776.  The  statute  of  uses   in  the 

United  States. 

777.  Future  and  executory  uses. 

778.  Sliifting,  springing  and  con- 

tingent uses. 

779.  The  law  of  modem  tntsts. 

780.  Statutes  regulating  trusts  in 

the  United  States. 

781.  Language  by  which  a  trust 

may  Ije  created — The  du- 
ration of  tlie  estate  taken 
by  tlie  trustee. 

782.  Trusts  to  sell  land  — When 

power  of  sale  only  is  cre- 
ated. 

78.'J.  The  power  of  an  executor  to 
sell  lands. 

784.  The  ex(!cution  of  a  jKiwer  of 
sjihs  by  surviving  executors. 

78.1     The  acceptance  of  the  trust. 

786.  The   [K»w«'r  of  e<[uity  to  uj)- 

jK)iiit  a  trust<'e. 

787.  Till!  n-iiioval  of  triiHt<'nH. 

788.  TJh' UKTg.'r  of  the  e(iuitable 

and  tli<!  legal  estiit<'H. 

781».  Th«'  i)rot<'ftion  and  prewrva- 
ti<»n  i){  the  truHt  profHjrty 
by  tlie  truHttMJ  — The  de- 
ffTRO  of  ram  re<|uire<l. 

/89«.  A  trust«H'  fan  not  purclniHO 
the    trust   projKTty  —  Tlir> 


remedy  of  the  cestui  que 
trust 
§  790.  The  liabilitj- of  trustees  for  in- 
vestment of  personal  i)roi> 
erty  in  trust. 
791.  The  liability  of  a  purchaser 
for  the  application  of  the 
trust  property. 

793.  Definition    of    a    precatory 

trust. 
79-3.     Particular  examples  of  lan- 
guage which  is  testament- 
ary,   and    not    precatory 
merely. 

794.  Tlie  modern  rule  as  to  the 

creation  of  precatory  trusts. 

795.  The  relations    between   the 

tiiistee  and  the  testator. 
790.    Where  the  discretion  is  abso- 
lute no  trust  is  created. 

797.  Precatory  words  in  a  devise 

to  a  person  for  himself  and 
children. 

798.  Powers   of   ajipointment  de- 

fined and  classified. 

799.  Language    necessary   to    be 

used  to  create  a  power. 

800.  The  mode  of  the  execution 

of  the  jKjwer. 

801.  Tlie  execution  of  a  power  of 

appointment  l)y  will  by  a 
general  devise. 

802.  E(iuitai)le    renieilics   for   the 

non-«'xt'cution  of  jMjwers. 
8();J.     The  frauilulenl  and  inipro|)er 

and  excessive  execution  of 

|iu\\e|-s. 
801.     The     illusory    exi-cution     of 

powers. 
805.     The  extinguishnieiit  of  pt)\v- 

ers. 
800.     Who  may  lie  (he  donee  of  a 

power. 
H<)7.     I'owers  when  void  for  remote- 


1002  LAW    OF    WILLS.  [§  Y71. 

§  771.  The  oriixin  and  early  eniployinent  of  uses. —  An  ex- 
tended discussion  of  the  origin  and  early  liistoiy  of  uses  and 
trusts  in  England,  or  of  the  rules  of  equity  which  regulated 
them  at  their  incejition,  would  obviously  be  altogether  out  of 
place  in  a  treatise  of  this  character.  The  student  who  may  bo 
desirous  of  entering  upon  a  more  complete  investigation  of  this 
subject  is  referred  to  the  numerous  excellent  treatises  in  which 
it  is  explained  in  the  fullest  detail.^  All  that  can  legitimately 
be  attempted  in  this  work  is  to  treat  concisely  of  the  rules  and 
principles  of  equity  Avhich  are  applicable  to  testamentary  trusts 
and  powers  as  they  now  exist  in  the  United  States  of  America, 
not  only  in  those  states  where  the  English  statute  of  uses  has 
been,  either  expressly  or  by  implication,  re-enacted,  but  also  in 
other  states  where  other  statutes  regulating  trusts  and  powers, 
and  delining  those  which  are  valid,  exist. 

In  order  to  understand  the  law  of  trusts  as  it  exists  at  the 
present  day,  it  is  necessary  to  preface  our  inquiry  into  that 
subject  by  a  short  consideration  of  the  events  which  preceded 
and  led  up  to  the  enactment  of  the  English  statute  of  uses. 
In  the  first  place  it  will  be  necessary  to  call  the  reader's  atten- 
tion to  the  fact  that  for  ages  in  England  the  only  way  of  con- 
veying freehold  land  or  other  corporeal  hereditaments  was  by 
a  feoffment  made  with  livery  of  seizin  upon  or  in  view  of  the 
land  itself.  This  involved  an  actual  transmutation  of  the  pos- 
session in  every  case  where  an  estate  in  freehold  was  created 
in  land,-  whether  for  life,  in  fee  simple  or  in  fee  tail. 

The  person  who  was  enfeoffed  of  the  land  must  be  the  actual 
owner,  and  he  must  continue  in  possession  either  in  person  or 
by  means  of  a  subtenant.  His  powers  of  alienation  were  origi- 
nally greatly  restricted,  and  the  burdens  Avhich  were  placed 
upon  him  were  extremely  onerous.  The  feudal  law  prohibited 
the  alienation  of  a  feud  from  one  person  to  another  without 
the  consent  of  the  lord,  lest  a  feeble,  cowardly  or  unfriendly 
tenant  miffht  be  sul)stituted  for  one  in  whose  strength  and 
bravery  the  lord  had  confidence.  Nor  could  the  tenant  alien, 
eve)i  with  the  lorcVs  consent,  until  he  had  procured  the  consent 
of  his  heir  apparent  as  well,  who  was  assumed  to  have  an  inter- 

1 1  Spence,  Equity  Jurisprudence,  et  seq.  See  also  tomeroy  and  Story 
p.  452  et  seq. ;  Lewin  on  Trusts,  §  1    on  Equity. 

■i  2  Black.,  p.  311 


§   771.]  TESTAMENTARY    USES,  TRUST   ESTATES,  ETC,  1095 

est  in  the  fee  which  entitled  him  to  be  heard.^  And  though  at 
a  very  early  date,  after  the  introduction  of  feudal  tenures,  a 
man  was  permitted  to  alien  land  which  he  had  himself  pur- 
chased without  the  consent  of  his  heir,  if  it  were  limited  to 
him  and  his  assigns,  it  was  not  until  the  thirteenth  year  of 
Edward  I.  that  lands  were  made  generally  alienable  by  the 
statute  quia  emjptores?  And  it  may  also  be  noted  that  from 
the  date  of  the  Xorman  conquest  of  England  down  to  the 
passage  of  the  statute  of  32  Henry  YIIL,  lands  in  England  Avere 
not  devisable.^  In  view  of  the  stringent  character  of  these  re- 
strictions upon  the  power  of  alienation,  it  is  not  to  be  wondered 
at  that  a  method  was  soon  devised  by  which  they  could  in  part 
at  least  be  evaded. 

The  land  which  it  Avas  intended  to  dispose  of  was  transferred 
by  a  feoffment  witli  livery  of  seizin  to  some  person  in  whom 
the  feoffor  had  confidence,  and  this  person  held  it  to  the  use 
of  the  former  owner.  The  feoffee  to  use  had  the  legal  title  to 
the  land.  He  was  able  in  law  to  maintain  an  action  to  protect 
the  possession  of  the  land  against  trespassers  and  against  waste 
and  disseisin.  He  might,  at  common  law,  maintain  ejectment 
against  the  feoffor  to  use,  and  he  was  under  no  obligation  to 
the  latter,  or  to  any  person  claiming  under  him,  except  so  far 
as  he  was  bound  in  conscience  to  pay  the  rents  and  profits  to 
the  actual  owner  of  the  land,  or  to  convey  the  legal  title  to 
some  person  a})pointcd  by  the  cexitul  que  use.  The  fact  that  a 
larire  amount  of  the  land  had  been  enfeoffed  to  jM'rsons  for  the 
benefit  of  the  various  ecclesiastical  corporations  in  oi-dcr  to 
avoid  the  jirohibition  imposed  by  Mufjna  Cliartd^  and  tiu;  stat- 
utes of  mortmain,  upon  the  holding  of  lami  by  religious  cor^jo- 
rations,  no  doubt  first  induced  the  court  of  chancery  to  assume 
jurisdiction  of  this  matter.  The  cedul  que  use  had  no  i-enie(ly 
at  law  for  a  refusal  on  the  ])art  of  the  feoffee  to  us(^  to  disposo 
of  the  h.'gal  title  vested  in  liiui  for  tin;  benefit  of  the  former. 
]>ut  the  ecclesiastics,  w  hi)  tlnn  eoiitrolled  the  court  of  cli.iu- 
cery,  following  the  pr-eeedeiits  of  the  civil  law,  by  means  of  Llui 
writ  called  lln;  writ,  of  subpo-na,  which  issued  under  the  seal 
of  the  chancellor  ;ind  \v;is  icturnable  before  hiiu,  at,  leni^th 
found   ;in    ellicimt,    iuetlio<l    of   enfoi-cin;^^   the   use   where   the 

I •.»  iJi.uk..  \>\t.  liHT,  2m.  'iAitir, ;; a. 

2  2  bluck.,  i>.  atttf. 


1094  LAW    OF    WILLS.  [§  7T1. 

feoffor  was  inclined  to  reject  his  conscientious  obligations.  The 
feoffor  was  stiminoned  to  appear  in  court  and  there  to  answer 
under  oath  how  he  had  disposed  of  the  rents  and  profits  of  the 
land,  and  he  might  then  be  compelled  to  transfer  the  land  to 
the  person  indicated  by  the  cestui  que  use} 

For  it  must  be  remembered  that  the  ecclesiastics,  who  at 
that  period  controlled  the  court  of  equity,  applied,  whenever  it 
was  possible  to  do  so,  the  rules  and  maxims  of  the  Roman  civil 
law,  of  Avhich  the  jldei  comniissuni  formed  a  component  part.- 
"We  may  well  believe  that  they  were  by  no  means  adverse, 
under  the  pretense  of  enforcing  the  conscientious  obligation 
which  had  been  imposed  upon  the  feoffee  to  use,  to  assert  and 
exercise  a  jurisdiction  which  gave  them  so  large  an  influence 
over  the  estates  and  actions  of  the  land-owning  class,  which  at 
that  date  had  a  monopoly  of  the  wealth  of  the  community. 
During  the  protracted  wars  in  which  England  was  involved 
with  the  neighboring  states  of  France  and  Scotland,  and  in 
the  ensuing  civil  discord  between  the  houses  of  Lancaster  and 
York,  with  their  resultant  bloodshed  and  insecurity  to  life  and 
property,  uses  grew  to  be  universally  resorted  to  for  the  pur- 
pose of  evading  the  forfeiture  of  land  which  was  incident  to 
an  attainder  or  a  conviction  of  treason,  and  for  the  purpose  of 
preserving  to  their  posterity  the  landed  estates  of  those  per- 
sons who  ventured  their  lives  in  the  various  struggles  waged 
for  the  possession  of  the  government.  And  though  it  Avas  at 
first  held  that  chancery  could  enforce  the  use  only  as  against 
the  original i:)erson  eiifeoffed  or  intrusted  with  the  legal  title,  it 
was  soon  decided  that  a  purchaser  from  him,  if  he  had  not 
parted  with  vakie,  or  if  he  took  with  notice  of  the  use,  and 
also  the  heir  of  the  feoffee,  took  the  legal  title  subject  to  the 
use,  which  would  be  enforced  against  him  as  a  binding  obligji- 
tion  in  a  court  of  equity.''  And,  on  the  other  hand,  the  widow 
and  the  husband  of  the  feoffee  to  use,  not  being  parties  to  the 
feoffment,  while  the}''  were  not  obligated  to  perform  the  use, 
were  unable  to  enforce,  as  regards  the  property  in  the  use,  the 
rights  of  dower  and  curtesy  which  they  possessed  in  land  at 
common  law. 

iPlowden,352;2Black.Coni.,p.3'28;  Com.,  p.  328;    1   Spence,  Eq.  Juris., 

1  Spence,  Eq.  Jur.,  §  455.  §  436. 

2  2  Inst.  2,  tit.  23;    Sanrlar's  Jus-        ^%  Black.  Com.,  p.  329;  1  Cruise, 

tinian,  gg  337,  338  et  seq. ;  2  Black.  Dig.  341. 


§   772.]  TESTAMENTAET   USES,  TKUST   ESTATES,  ETC.  1095 

It  followed,  as  a  result  of  the  co-operating  causes  aoove  men- 
tioned, that,  by  the  time  of  the  reign  of  Henry  YIIL,  nearly 
the  whole  landed  wealth  of  the  kingdom  had  been  conveyed 
to  uses  over  which  the  court  of  chancery  alone  had  jurisdiction, 
and  concerning  which  an  extremely  intricate,  though  logical 
and  orderly,  system  of  rules  and  principles  had  been  formu- 
lated, by  which  the  cestui  que  use  enjoyed  all  the  advantages 
with  none  of  the  disadvantages  which  are  attendant  upon  a 
common-law  estate.  The  consequence  of  this  was  that  legal 
titles  to  land  were  thrown  into  inextricable  confusion.  The 
heir,  who  was  favored  at  the  common  law,  could  be  unjustly, 
and  often  was  unintentionally,  disinherited.  The  king,  by  the 
employment  of  uses,  lost  his  forfeiture  for  treason;  and  the 
feudal  landlord  his  right  to  wardships  and  to  reliefs.  The 
common-law  rights  of  dower  and  of  curtesy  were  often  de- 
stroyed and  always  imperiled.  At  length,  to  remedy  these 
and  other  evils  deemed  to  be  intolerable,  the  statute  of  27 
Ilenr}'  YIII.,  c.  10,  commonly  called  the  Statute  of  Uses,  was 
passed  with  the  intention  on  the  part  of  parliament  of  utterly 
abolishing  uses,  and  transferring  the  legal  title  from  the  feoflfee 
to  the  cestui  que  use} 

i  772.  The  exception  to  the  English  statnte  of  uses  ^ 
Statut<'  does  not  apply  to  cliattels.— The  advantages  of  uses 
in  allowing  the  creation  of  estates  in  real  property  which  were 
not  permitted  according  to  common-laAV  rules  were  so  mani- 
fest, and  so  greatly  exceeded  the  evils  to  which  uses  had  given 
rise,  that  the  courts  were  iinniiplcd  to  construe  the  statute 
most  strictly.  Thi;  statute  of  uses,  too,  was  remedial.  Owing 
to  this  strict  construction,  uses,  instead  of  being  absolutely 
ai)olished  by  the  statute,  were  only  confirmed  and  strengthened 
Vjy  it,  so  tliat,  under  the  name  of  trusts,  they  continued  to  exist 
in  many  cases,  and  still  exist  to  this  day.     It  is  impossible,  be- 

•Th«  material  jmrt  of  this  HtatutH  Kiinple  or  fee  tail    .     .     .     sliall  staml 

iH  as  follows:  "Tiiat  wlicru  any  imt-  and  be  snizcil,  dccmt'd  ami  ailjud^ced 

fwm  or  jiersons  Ht*x)d  <ir  wcrn  wiznd  in  lawful  seizin,  cslatf  and  imsscs- 

of  honours,    .    .    .    lands,  tenoments  8ion,    ...     in  th«j  law,  of  and   in 

.     .     .     or  hfrfditainf-nts    ...     to  such  estates  as  tlicy  had  in  tluMisf, 

the  use,  ronfidi'iici*  or  trust  of  any  ronrKlciu-iMir  trust    .     .     .    and  such 

other  i»erHon  or  |M'r.s<ins,  or  l><»dy  |k)I-  rslatf  siiall  1m-  in  him  and  llicni  afti»r 

itic!.     .     .     .     all  ami  «'vcry  such  jH-r-  such  (luality,  nianncr.  lorni  and  con- 

Hon  or  Inxly  jK.litic  that  hav«!    .     .     .  dition  as  llicy  had   lit-furc    in  or  to 

hu«;h  use,  conlldcnce  or  truiit  in  feo  the  use." 


1096  Lvw  OF  WILLS.  [§  773. 

cause  of  the  limited  space  at  our  command,  to  enumerate  with 
any  completeness  of  detail  all  the  refinements  and  technical- 
ities by  which  the  operation  of  the  statute  of  uses  was  evaded, 
and  the  equitable  doctrine  of  trust  estates  erected  into  its  pres- 
ent symmetrical  proportions.  The  intention  of  the  legislature 
was  to  utterly  abolish  all  uses.  This  was  to  be  done  by  exe- 
cuting the  use, —  that  is  to  say,  by  transferring  the  possession 
from  him  who  had  the  legal  seizin,  i.  e.,  the  feoflfce  to  use,  to 
him  Avho  had  the  use,  so  that  the  cestui  que  use  was  to  be  made 
the  owner  of  the  land  hoth  at  law  and  in  eq^iity}  But  the  courts, 
in  construing  the  statute,  very  soon  decided  that  it  had  no  ap- 
plication to  any  chattel  interest.  The  express  terms  of  the  stat- 
ute refer  only  to  estates  of  which  a  man  '■^  stood  or  loas  seized^ 
At  common  law  livery  was  necessary  to  give  seizin,  and  no  liv- 
ery could  be  made  of  any  estate  which  was  less  than  a  free- 
hold.- Hence  the  statute  was  construed  not  to  execute  uses 
limited  in  leasehold  estates  of  land,  but  only  estates  for  life  and 
estates  of  inheritance,  of  which  one  could  be  seized.'  Hence, 
if  the  estate  in  the  feoffee  to  use  is  for  a  term  less  than  a  free- 
hold, he  will  be  still  treated  as  a  trustee;  and  the  use  will  re- 
main unexecuted  so  far  as  his  estate  extends,  although  the 
beneficial  and  equitable  interest  in  the  cestui  que  use  is  a  free- 
hold. 

§  773.  Active  uses  are  not  executed  by  the  statute. —  All 
uses  and  trusts  are,  irrespective  of  any  statute,  either  active  or 
passive  in  their  nature.  "Where  the  feoffee  to  use  has  any  act- 
ive duty  to  perform,  the  use  is  active  and  it  is  not  executed 
by  the  statute  of  uses.  If  the  feoffee  to  use  Avere  by  the  feoffor 
directed  to  pay  the  net  income  and  profits  of  land  to  A.  after 
paving  and  deducting  taxes,  rates  and  repairs,^  or  if  he  were  di- 
rected to  apply  the  rents  and  profits  to  the  support  ^  or  to  the 
maintenance  and  education  of  the  beneficiary,"  or  if  he  is  to 
receive  and  pay  the  rents  to  A.,^  or  if  he  is  to  pay  annuities 

12  Black.  Com.,  p.  333.  6  Silvester  v.  Wilson,  2  T.  R.  444; 

2  2  Black.  Com.,  p.  311.  Plenty  v.  West  5  Com.  Bench,  201; 

3  1  Cruise,  Dig.,  pp.  350,  3.'51,  353;  Grothe's  Appeal,  135  Pa.  St.  585.  1!) 
Prest.  Estates,  190;  1  Spence,  Eq.  Ju-  Atl.  R.  1058,  26  W.  N.  C.  2G5;  Eshle- 
ris.,  §  466  et  seq.  man's  Estate,  43  AtL  R.  201,  44  W.  X. 

4  s'hapland  v.  Smith,  1  Bro.  C.  C.  74.  C.  96. 

5  Rittgers  v.  Rittgers,  56  Iowa,  218,  ^  Doe  v.  Homfray,  6  AdoL  &  Ellis^ 
220.  206. 


§  773.]  TESTAMENTARY   TSES,  TKUST   ESTATES,  ETC.  109T 

out  of  the  income,^  or  to  lease  property  and  collect  and  pay  over 
the  rents  of  the  same,-  or  to  accumulate  profits  and  income,  or 
if  he  is  merely  to  keep  the  property  in  repair,  the  use,  or,  in 
modern  language,  the  trust,  is  an  active  one,  and  it  will  not  be 
executed  b}'  the  statute  of  uses.^  In  other  words,  where  any 
control  is  to  be  exercised  or  any  duty  is  to  be  performed  by 
the  trustee,  hoivever  slight  it  may  he,  or  where  the  trustee  is 
empowered  to  exercise  a  discretion  in  the  management  of  the 
fund,  either  as  regards  its  investment  or  the  expenditure  of 
the  income,  the  trust  is  active,^  For,  inasmuch  as  it  will  be 
impossible  for  the  feoffee  or  trustee  to  perform  the  duties  im- 
posed upon  him  unless  he  is  permitted  to  retain  the  legal  estate 
in  him,  it  will  be  conclusively  presumed  that  the  feoffor  meant 
that  he  should  hold  it.  Equity  will  not  permit  the  legal  title 
to  be  transferred  to  the  beneficiary  under  the  statute  of  uses, 
against  the  plain  intention  of  the  creator  of  the  use  or  trust 
that  he  should  have  only  an  equitable  interest.  And  as  the 
statute  of  uses  also  provided  that  the  cestui  que  iise,  as  soon  as 
the  use  was  executed,  should  stand  seized  in  the  same  "  quality, 
manner,  form  and  condition"  as  he  had  in  the  equitable  in- 
terest, and  as  he  had  only  the  right  to  receive  the  net  income, 
it  is  clear  that  the  statute  had  no  application  to  an  active  trust 
or  use,  for  no  person  can  be  a  trustee  for  himself.  But  all 
passive  uses  or  trusts,  where  the  feoffee  to  use,  or,  in  modern 
language,  the  trustee,  has  no  active  duty  to  perform,  are  exe- 

1  Croome  V.  Croome,  61  Law  T.  814;  (Pa.)  514,  530;  Shankland's  Appeal, 

Walker  V.  "Whiting,  23  Pick.  (Mass.)  47  Pa.  St.  113;  Barnett's  Apiu-al,  46 

;il3.  Pa,  St.  392,  398;  Lancaster  v.  Dolan, 

^  Sears  v.  Rassell,  8  Gray  (74  Mass.,  1  Rawle  (Pa.),  231 :  AVatson's  Ai)i>eal, 

1857),  89.  125  Pa.  St.  340;  Moorlieatl'.s  Estate 

3  Clark's  Estate   (Conn.,   1899),  39  (Pa.).  30  Atl.  K.  017;  Aikin  v.  Sniitli, 

Atl.  li.  155;  Cutter  v.  Ilanl.v,  48  Cal.  1  Sneeil  (Tenn.),  304;  Br<M>ks  v.  Mar- 

(1874),  503;  13<jwnian  v.  Long,  20  fja.  bury,  11  \V)ieat.  78;  PetiT  v.  Ik'verly. 

142,  140;  Schley  v.  Lyon,  0  f  Jju  530;  10  IVtcrs  (U.  S.),  532. 
CariKjnter  V.  Browning,  98  III.  (18>jl).        <  Bennett  v.  Bennett.  00  111.  Apj.. 

282;  Mortfjn  v.  Bjirrett,  22  Me.  (1842),  28;  Kirklaiul  v.  Cox  (1K80).  94  111.  412; 

2.57;  Pwircf5  V.  Savage.  45  Me,  (1858),  Kellogg  v.   Hale   (1883).   108  IIL  108; 

90;  Leonard  v.  Hiainond,  31  Mil.  503;  Doe  v.  Briggs,  2  Taunt.  109;  Novil  v. 

I>vmar<l  V.  Haworth  (Mass.).5l  N.  E.  Saimders,   I  Vern.  415;  1    Prost.  ¥m- 

\L  7;  Newhall   v.   Wlieeh^r,  7   Mass.  tates.  p.    185;  Acklati.l   v.   Lutley,  9 

189;  Norton  v.  Leonanl,  12  Pick.  (29  A<iol.  tt  Ellis,  979;  I)(k^  v.  Ei«'UI,  2  B. 

Miuw.),    152,    15S;   Wells  v.   Castle,    3  &    Al.    5t5t;    \Um    v.     Pahsinghani,    0 

<fniy,  32:5;  Exeter  v.  Oiliorm-,  1  N.  II.  Barn.  &  (Jress.  305;  Dou  v.  Collior,  11 

2.52;  Pullen   v,    Ititinlmni,    1  Whart.  East,  377. 


109S 


LAW    OF    WILLS. 


[§ 


cuted  bv  the  statute  of  uses  in  the  cestui  que  nse.  The  trustee 
takes  no  k^gal  estate,  but  that  coalescing  with  the  equitable"  in- 
terest passes  at  once  under  the  will  to  the  beneficiary.' 

A  devise  to  A.  in  fee  in  trust  to  convey  the  land  to  JJ.  and  his 
heirs  absolutely,  where  the  sole  duty  of  the  trustee  is  to  convey 
to  the  heneficlary,  is  a  passive  trust  which  is  executed  in  B.  by 
the  statute  of  uses  upon  the  death  of  the  testator,  or  when  the 
conveyance  is  directed  to  be  made.^    But  where  the  trustee  is 


1  Bowman  v.  Long,  26  Ga.  142,  147; 
Carpenter  v.  Browning,  98  111.  (1881), 
282;  Witham  v.  Brooner,  03  111.  (1872). 
344;  Simonds  v.  Siraonds,  112  IMass. 
<1873),  157;  Everts  v.  Everts.  80  Mich. 
^22,  45  N.  W.  R.  88;  Thompson  v. 
€ouaut  (Minn.,  1896),  58  N.  W.  R. 
1145;  Pugh  V.  Hayes,  115  Mo.  424,  21 
S.  W.  R.  23:  Moorehouse  v.  Hutchin- 
son, 2  N.  Y.  Supp.  215;  Appeal  of 
Rodrigue  (Pa..  1895),  15  Atl.  R.  680; 
Kay  V.  Scates,  37  Pa.  St.  (1860),  31; 
]yicCune  V.  Baker,  156  Pa.  St.  503 
(1893),  26  AtL  R.  058:  Bacon's  Appeal, 
57  Pa.  St.  504;  loor  v.  Hodges,  1 
Speer's  Eq.  (S.  C,  1844),  593,  596; 
Robinson  v.  Ostendorff,  38  S.  C.  66 
(1892),  16  S.  E.  R.  371:  Reeves  v.  Bray- 
ton,  15  S.  E.  R.  658.  36  S.  C.  384; 
Georgia,  etc.  Co.  v.  Scott,  38  S.  C. 
34,  16  S.  E.  R.  185;  Simms  v.  Buist 
(S.  C,  1898),  30  S.  E.  R.  400:  Riehl  v. 
Bingenheimer,  2G  Wis.  (1870),  84; 
Martin  V.  Fort,  83  Fed.  R.  19;  Hen- 
son  V.  Wright,  85  Tenn.  501,  12  S.  W. 
R.  1035.  A  devise  to  a  trustee  in  fee, 
iniix)sing  no  duties  except  to  apply 
the  proceeds  and  profits  to  the  per- 
sonal use  of  the  beneficiarj'  (a  widow, 
and  not  in  contemplation  of  mar- 
riage) as  she  might  reijuire  them, 
and  containing  no  limitation  over, 
either  as  to  the  income  or  corpus, 
creates  a  passive  trust,  and  the  ben- 
eficiary is  entitled  to  a  conveyance 
of  the  estate.  Appeal  of  Rodrigue 
(Pa.,  1895),  15  Atl.  R.  680.  Testator 
devised  land  to  his  wife  for  life,  re- 
mainder to  be  equally  divided  be- 
tween his  children,  and  directed  her 


to  execute  a  conveyance  of  the 
shares  of  his  two  daughters  to  a 
trustee  named,  to  take  effect  after 
her  death,  for  their  separate  use, 
which  was  done.  Held,  that  the  trust 
was  passive,  and  that  the  statute 
of  uses  vested  in  such  daughters  the 
legal  title  to  their  sliares.  Moore- 
house V.  Hutchinson,  2  N.  Y.  Supj). 
215.  "Perhaps  the  rule  might  be 
more  accurately  expressed  to  say 
that,  wiien  the  intention  is  that 
the  estate  shall  not  be  executed  in 
the  cestui  que  trust,  and  any  object 
is  to  be  effected  by  its  remaining  in 
the  trustees,  then  it  shall  not  be  exe- 
cuted." By  the  court  in  Posey  v. 
Cook,  1  Hill  Eq.  (S.  C),  413,  414.  If 
land  be  devised  to  A.  in  trust  for  B. 
for  his  life,  and  on  B.'s  death  in  trust 
to  convey  to  B.'s  heirs,  and  the  use 
is  executed  by  the  statute  in  B.,  he 
will  by  the  operation  of  the  rule  in 
Shelley's  Case  take  an  estate  in  fee 
simple  and  his  heirs  will  take  by  de- 
scent from  him.  Ante,  §  663.  If  the 
trust  is  not  executed  in  B.,  the  equi- 
table interest  in  him  and  the  legal 
interest  in  his  heir  will  not  coalesce 
and  the  heirs  of  B.  will  take  as  pur- 
chasers. Jones  V.  Lord  Saj-  and  Seal, 
8  Yin.  Ab.  262,  1  Eq.  Cas.  Abr.  383, 
pi.  4;  Biscoe  v.  Perkins,  1  Yes.  &  Bea. 
485. 

2  Adams  v.  Guerard  (1859),  29  Ga. 
651;  Watkins  v.  Reynolds.  123  N.  Y. 
211,  25  N.  E.  R.  322:  Appeal  of  Bacon, 
57  Pa.  St.  (1868),  36;  Westcott  v.  Ed- 
munds, 68  Pa.  St.  36. 


§  773.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  1090 

to  pa}^  the  income  to  A.  during  hislife^  and  upon  A.'s  death  he 
is  directed  to  convey  the  fee  as  A.  shall  appoint,  or  among  A.'s 
issue,  and  if  K.  leaves  no  issue  then  to  convey  to  B.,  the  trust  is 
an  active  trust  as  regards  the  fee  simple  of  the  estate  by  reason 
of  the  duties  which  the  trustee  is  to  perform.^  Thus  a  devise 
by  the  testator  of  his  estate  to  A.  for  life,  remainder  to  A.'s 
children,  and  the  appointment  of  B.  as  trustee  during  A.'s  life, 
Avith  full  power  in  said  trustee  to  grant  and  convey  the  fee 
simple  of  the  property,  and  on  A.'s  death  to  become  executor 
of  the  estate,  create  an  active  trust  though  the  trustee  has  abso- 
lutely nothing  to  do  but  to  convey  the  fee  when  it  shall  be- 
come necessary  to  do  so.' 

Whether  a  devise  to  the  use  of  A.  to  permit  him  to  receive 
rents  and  profits  is  or  is  not  a  passive  trust  depends  on  the  facts 
of  the  case.  If  the  trustee  has  any  duty  to  perform,  however 
slight  it  may  be,  in  connection  with  the  receipt  of  the  income 
by  the  beneficiar}'',  the  trust  is  active.  In  England  a  trust  to 
preserve  contingent  remainders,  and  to  ijermit  the  beneficiary  of 
the  particular  estate  to  receive  income  by  imposing  an  active 
<luty  upon  the  trustee,  will  prevent  the  execution  of  the  trust 
by  the  statute.'  The  same  rule  of  construction  was  applied 
where  the  use  was  to  permit  A.  to  receive  the  ;///  profits,  as  the 
word  rust  implies  the  receipt  of  the  (jross  income  or  profits  by 
the  tru.stee,  and  the  payment  and  deduction  by  him  of  all 
charges  for  the  management  of  the  estate.*  But  usually  a  de- 
vise in  trust  to  permit  A.  to  receive  the  income,  the  trustee 
having  no  duty  to  p^^rform^  as  di.stinguished  from  a  devise  in 
trust  to  receive  andpayW^o.  income,  is  a  passive  trust  and  hrnco 
it  is  executed  by  the  statute.* 

•Green  v.  fJrant.  143  111.  01  (1892),  'Biscoe  v.  Perkins.  1  Ves.  &  B.'Ji. 

a2  N.  E.  R  :U5«;  Meek  v.  BriKKs,  87  4m,-,. 

Iowa,  010(1H'J:{),  54  X.  W.  K.4r,IJ.    Vf.  <  Barker   v.   Greenwood.  4  Meo.  & 

Hale  V.  Hale,  14«  III.  227,  :{:}  N.  E.  li.  Wei.  421. 

8.j8.     a  trust  to  fliviile  lands  a.s  in-  •'*  Ri^lit  deni.  riiilli|)s  v.  Smilli.   12 

dieated  liy  the  will,  and  n  fortiori  to  East,  4.")-.  Doe  deni.  NoMe  v.  l'.oltoii, 

divide  lands  anionj<  several  iM-rsons  11  .\dol.  cV  Ellis.   INH;   Doe  dein.   Lei- 

in  tfie  ilincnliou  of  the  trustee,  and  cester  v.  Uri>;KN  2  Taunton.  lO'.l;  V\f- 

to  convey  the  same  to  the  henedria-  ham   v.   Varney.   l.'i  N.  H.  IH'J;  Waro 

ries,  is  an  aetive  trust.  v.  Ilirhardson,  '>i  .Md.  .'lO.'j,  ."jIN. 

-'Doe  V.  Iioe(Del.,  1801),  40  .\ll.  It. 

iio«;. 


1100  LAW    OF   WILLS.  [§  Y74. 

§  774.  Uses  for  the  benefit  of  married  women  arc  not  exe- 
cnted  by  the  statute. —  The  statute  of  uses  does  not  execute 
the  use  where  bind  is  devised  to  A.  in  trust  for  the  benefit  of 
B.,  who  is  a  married  woman,  and  A.  is  to  hold  it  for  her  sepa- 
rate use,^  though  the  trustee  has  no  active  duties  to  perform  in 
connection  with  the  trust  estate.  Thus,  a  trust  to  permit  a  mar- 
ried woman  to  receive  the  rents  and  profits  for  her  separate 
use  is  not  executed  by  the  statute,-  though  the  trustee  has  abso- 
luteh"  no  duty  whatever  to  perform  in  connection  with  the  re- 
ceipt of  the  profits  by  the  Avoman.  The  purpose  of  the  testator 
to  confer  an  interest  in  real  property  upon  the  beneficiary 
which  will  be  wholly  free  from  the  common-law  incidents  which 
attach  to  land  which  is  owned  by  her  during  coverture  would 
be  defeated  by  the  execution  of  the  use  and  the  vesting  of  the 
seizin  and  legal  title  in  her.''  The  husband  has  the  right  at 
common  law,  independently  of  statute,  to  receive  the  rents  of 
the  land  owned  by  the  wife  during  marriage,  and  upon  the 
wife's  death,  having  children  by  him,  he  may  enforce  his  right 
of  curtesy.*  If  the  property  is  thus  placed  in  trust  for  the 
feinme  coverte  she  may  dispose  of  it  by  sale,  mortgage  or  de- 
vise, free  from  the  control  of  her  husband,  unless  the  testator 
or  other  person  creating  the  trust  in  her  favor  has  expressly 
limited  her  power  of  alienation.^ 

The  fact  that  no  use  was  held  to  be  executed  under  the  Eng- 
lish statute  of  uses,  where  the  cestui  que  use  could  not  hold  the 
legal  title  in  such  "  quality,  manner,  form  and  condition  "  as  he 
enjoyed  the  use,  furnishes  the  reason  why  a  separate  use  for  a 

1 2  Black.  Com.,  p.  33G.  control  of  her  husband,  being  recog- 

2  Harton  v.  Harton,  7  Term  R.  652;  nized  as  a  valid  express  trust  by  1  Re- 
Doe  dem.  Woodcock  v.  Barthrop,  5  vised  Statutes  of  New  York,  page  728, 
Taunton,  582.  section  55,  subdivision  3,  vests  the 

3  2  Black.,  p.  433.  whole  legal  and  equitable  estate  in 
^Steacey  v.  Rice,  27  Pa.  St.  (1856),    thetrustee,  subject  only  to  the  execu- 

75,  81;  Williman  v.  Holmes,  4  Rich,  tion  of  the  trust  imposed  (section  60), 
Eq.  (S.  C,  1851),  475,  495;  Westcott  v.  and  every  estate  and  interest  not  em- 
Miller,  42  Wis.  465;  In  re  Berg's  Es-  bracedinthetrust,  and  not  otherwise 
tate,  30  Atl.  R  1022,  166  Pa.  St.  113.  disposed  of,  by  force  of  section  62,  re- 
Cf.  cases  ante,  §  753.  mains  in  and  reverts  to  the  grantor 
5  See  ante,  %  121,  and  see  cases  fully  and  her  heirs  as  a  legal  estate.  (Af- 
cited  ante,  %  754.  A  conveyance  of  firming  5  N.  Y.  S.  442,  Andrews,  J., 
land  to  a  trustee  to  apply  the  yearly  dissenting.)  Townshend  v.  Frommer, 
income,  rents  and  profits  to  the  26  N.  E.  R  805,  125  N.  Y.  416. 
grantor's  use  for  life,  free  from  the 


g  774.]  TESTAMENTAKT    USES,  TRUST   ESTATES,  ETC. 


1101 


married  woman  is  not  execiited.  Cessat  ratio ^cessat  lex.  "Where, 
by  reason  of  the  operation  of  the  modern  statutes  in  the  states 
of  the  American  Union,  a  married  woman  may  now  hold,  enjoy 
and  dispose  of  her  real  property  in  the  same  manner  and  to  the 
same  extent  as  though  single,  it  would  seem  that  a  separate  use 
trust  for  the  benejfit  of  a  married  Avonian  would  be  executed 
by  the  statute.^  But  it  must  not  be  understood  that  even 
where,  by  some  modern  statute,  a  married  woman  enjoys  all 
the  rights  of  a  femme  sole  as  to  her  property,  a  trust  for  her 
benefit  is  alwrnjs  executed  by  the  statute  of  uses.  The  fact  that 
a  beneficiary  of  a  trust  estate  is  &  femme  coverte  does  not  alone 
execute  a  trust  in  her,  provided  it  is  an  active  trust  which  is 
otherwise  valid  under  the  statute  of  uses.  Thus  a  trust  in  ex- 
press terms  to  pa}'  the  income  to  K.for  her  sole  and  separate  use^ 
free  from  the  control  or  interference  of  her  husband,  is  a  valid 
trust  at  the  present  day,  not  because  A.  is  a  married  woman, 
but  because  it  is  an  active  trust,  vesting  the  legal  estate  and 
seizin  in  the  trustee,  and  it  is  for  that  reason  not  executed  by 
the  statute.^ 


1  Sutton  V.  Aikin,  63  Ga.  753;  Bayer 
V.  Cockerill.  3  Kan.  202;  Bratton  v. 
Massey,  M  S.  C.  277;  Ware  v.  Rich- 
ardson, 3  ^Id.  50.1,  .148.  Tlie  fact  that 
the  will  dechired  that  the  land  de- 
vi.sed  should  not  be  liable  for  the 
debts  of  the  dauj^hter's  hasband  did 
not  render  the  intervention  of  trust- 
ees nece.ssary,  and  thas  take  the 
case  out  of  the  statute  of  trusts,  since, 
under  the  constitution  of  1HG8,  a 
MOMian's  estate  is  not  liable  for  her 
liiLsljand's  debts.  R<jbinson  v.  Osten- 
dodf.  38  S.  C.  60,  10  S.  E.  U.  371. 

^(jlreen\vfx)d  v.  Coleman  (18")9),  31 
Ahu  ir>0;  M.I><,ii;ild  V.  M<-CJa!l.  18  S. 
E.  R.  l.">7,  01  (ia.  301;  Sidway  v.  Nich- 
ols (Ark..  1807 1,  34  S.  W.  li.  .V.'0;  Rich- 
ardsfm  v.  Stod<ler,  100  Mass.  Wi.>*,\ 
Ro!u.'h  V.  Dabney  (Ky.),  11  S.  W.  R 
«01;  In  H!  Dorncy's  K^tate  (IHOO).  130 
P;i.  St.  142.  20  W.  N.  (;.  44.').  20  Atl.  R. 
OJo;  ApiHjal  of  Ivhnunds  (1871),  08 
pjL  St.  24;  Ix'wIm  v.  Hryci-.  187  I'o.  Si. 
302,  41  Atl.  It  302;  Wall.T*M  Adinr  v. 
Catlett's   Kx"r,   83   Va,  200   (1887),  2 


S.  E.  R.  280.  A  trustee,  merely  liold- 
ing  the  legal  title  to  property  for  the 
separate  use  of  a  married  woman, 
cannot  incumber  it,  without  express 
or  implied  authority  in  the  deed  cre- 
ating the  trust.  Seborn  v.  Beckwith 
(1890),  3  S.  E.  R.  450.  The  fact  that 
at  the  present  time,  by  statute,  a 
married  woman  may  alienate  her 
property  as  though  she  were  unmar- 
ried, does  not  enable  the  triLsteo  of  a 
coverture  trust  to  sell  the  trust  pn>|>- 
ertyfor  her  sujiixjrt,  though  with  iier 
C(jns»'iit.  whenj  he  has  power  under 
the  will  to  sell  for  reinvestiiifiit  only. 
To  iK-rmit  this  would  enlarge  the 
])owers  of  tbe  trustee  bt-yond  the 
terms  of  the  instrument  cn'ating 
the  trust,  \\i\hh  v.  Elenniken.  20  8. 
C.  278,  7  S,  R  R  5i»7.  A  dfni.so  in 
trust  for  a  wifn  and  her  children,  so 
that  her  husband  shall  not  control 
the  sjime,  confers  no  interest  in  tho 
children  duringthe  lifeoftlie  mother. 
Waller's  Adm'r  v.  Catlelts  lO.x'r,  83 
N'ji.  200.  2  S.  E.  R.  280.     S»;e  ul.so  aio- 


Il(l2  LAW    OF    WILF.S,  [§  774. 

"Whotlicr  tlie  married  woman  shall  take  the  equitable  title  in 
fee  or  for  her  life  only,  and  whether  the  trust,  being  especially 
created  by  the  will  for  her  separate  use  during  her  coverture, 
shall  be  executed  in  her  as  a  legal  estate  during  the  thne  she  is 
not  actualhj  under  coverture,  to  revive  as  a  trust  upon  her  re- 
marriage, are  questions  to  be  determined  upon  the  language  of 
each  separate  will.  The  purpose  of  a  testator  who  creates  an 
active  trust  for  the  benefit  of  a  married  woman  "  for  her  sole 
and  separate  use  during  coverture  "  is  now  usually  to  protect 
the  wife  from  the  influence  and  importunity  of  the  husband. 
It  is  meant  to  prevent  the  wife  from  transferring  the  property 
to  her  husband  as  she  might  do  if  she  was  vested  with  the  legal 
title.  While  a  woman  is  unmarried  a  trust  for  her  separate 
use,  to  be  free  from  the  control  of  her  husband,  though  it  is- 
valid  as  an  active  trust,  is  unnecessary.  Accordingly  if,  at  the 
date  of  the  death  of  the  testator,  the  beneficiary  is  married, 
the  trust,  which  is  to  endure  during  her  coverture,  will  termi- 
nate upon  the  subsequent  death  of  her  husband,  and  she  will 
then  take  absolutely.  And  though  a  devise  in  trust  for  a  mar- 
ried woman  "  for  her  sole  and  separate  use  during  coverture, 
excluding  «/^  control  of  her  hushand^''  gives  her  an  equitable 
estate  during  coverture,  her  interest  becomes  a  legal  estate 
upon  her  husband's  death,  so  that  if,  by  the  will,  a  remainder 
has  been  limited  to  the  heirs  of  her  body,  the  estate  in  her  and 
in  the  remaindermen  will  be  of  the  same  quality,  and  an  estate 
in  fee  will  result  to  her  by  the  rule  in  Shelley's  case.^  And, 
upon  the  other  hand,  if  the  woman  is  unmarried  at  the  death 
of  the  testator,  and  a  fortiori  if  she  be  then  an  infant  of 
tender  years,  so  that  her  marriage,  if  it  shall  take  place  at 
all,  will  occur  only  in  the  distant  future,  the  use,  though 
active,  may  be  executed  at  once  in  her  by  the  statute,  where 
the  sole  intention  of  the  testator  was  to  give  her  property  a 
protection  which  she  does  not  then,  and  may  never,  need.-  And 
it  has  also  been  held  that  a  devise  of  an  estate  in  trust  for  the 

Donald  v.  McCall,  18  S.  K  R  157,  91  Pa.  St.  214  (1883).  23  AtL  R.  444,  28 

Ga.  304  W.  N.  C.  557.    Compare  In  re  Dorney, 

>  Shalters  v.  Ladd  (Pa.),  21  Atl.  R  136  Pa.  St.  142  (1890),  26  W.  N.  C.  445, 

596,  28  W.  N.  C.  36.    See  ante,  §§  655-  20  Atl.  R  645:  Koenig's  Appeal,  57 

665.  Pa.  St.  352;  Tucker's  Appeal,  75  Pa. 

2  Meacham  v.  Graham  (Tenn. ,  1 897),  St.  354 
39  S.  W.  R  12;  Neale's  Appeal,  104 


§§  775,  77G.]       TESTAMENTARY   TSES,  TKUST   ESTATES,  ETC.  1103 

separate  use  of  a  woman  during  her  marriage  is  void  as  a. 
trust  when  she  Avas  neither  married  nor  in  contem})Lation  of 
marriage  at  the  date  of  the  execution  of  the  Aviil,  though  she 
was  married  at  the  date  of  the  death  of  the  testator.' 

§  775.  A  use  upon  a  use  is  not  executed  by  the  statute. — 
The  statute  executes  the  use  in  that  person  only  who  is  the  im- 
mediate cestui  que  trust  or  ^ise.  Hence,  if  A.  was  enfeoffed  in 
fee  of  land  (he  having  livery  of  seizin)  to  the  use  of  B.  and  his 
heirs,  to  the  use  of  C.  and  his  heirs,  the  statute  would  execute 
only  the  first  use  in  B.-  The  seizin  was  drawn  out  of  A.  to  B. 
and  his  heirs  by  the  statute,  but  it  went  no  further  than  B. 
The  first  use  was  executed  in  him,  and  this  would  have  ren- 
dered the  second  use  a  nullity  had  it  not  been  for  a  considera- 
tion arising  out  of  the  construction  of  another  phrase  which 
was  found  in  the  statute.  B.  and  his  heirs  then  had  in  them 
the  seizin ;  but  as  they  were,  by  the  express  terms  of  the  stat- 
ute, to  stand  seized  of  the  land  in  "  such  quality,  manner^  form, 
and  condition  "  as  they  had  before  possessed  in  the  use,  B.  and 
his  heirs  took  the  legal  title  and  the  seizin  as  trustees  for  C. 
and  his  heirs.'  So  where  the  property  was  limited  in  a  mar- 
riage settlement  to  A.  for  the  use  of  I>.  for  life,  and  after 
B.'s  death  in  trust  for  the  use  of  the  settlor  for  his  life,  Avitli 
various  remainders  over,  it  was  held  that  the  use  was  executed 
in  the  settlor  for  his  life,  and  that  the  limitations  over  Avere 
not  trust  estates,  but  that  they  Avere  contingent  remainders  at 
the  common  law.^ 

%  776.  The  statute  of  uses  in  the  United  States.— The  Eng- 
lish statut<i  of  uses  formed  a  ])art  <jf  the  system  of  hnv  w  hich 
Avas  introduced  in  America  by  tlic  early  English  settlers,  it  is 
a  general  rule  in  determining  whether  an  English  statute  is 
applicable  to  America,  that  in  tlw  ;iltsr'iie(;  of  ;iii  exju-ess  re- 
<'nactment  of  the  English  statute,  or  of  a  pi-ecisely  similar  stat- 
ute, such  English  statutes  as  are  ji|)|)lieal»le  to  the  situation  and 
social  condition  of  this  country,  and  which  wn-c  in  j'orce  ;it 
the  time  of  the  settlement  of  America  by  the  I'jiglish,  form  a 
part  of  the  common  law  of  those  states  which  were  Englisii 

'In   xi'  Qtiinn's  Kntato,  22  All.   H.         M'artiunv.     272;     Tyrn'll'H     Cjum\ 

or,.-).  M  J  I'll.  St.  SV\,  2«  W.  N.  C.  5.j7.  Dy.r.  I.V..  1  Co.  H.  wm.  IST;  Cri>xull 

■^2  Hhu-k.  ('•.III..  |t.  :5:m.  V.  Sli.ncr.l,  .j  Wall.  (U.  S.)  2(58,  2b2. 
'Dyer,  lOO;  Cua.  Tciup.  Tul.  KJl. 


llOi  LAW    OF    AVILLS.  [§  777. 

ton-itory  at  the  date  of  the  Revolution.  In  some  of  those  states 
Avhich  were  originally  under  the  control  of  otiier  governments 
tlian  the  English,  the  English  statutes  not  repugnant  to  the 
constitution  of  the  United  States  and  not  local  in  their  char- 
acter have  been  expressly  re-enacted.  It  is  proljable,  therefore, 
that  at  the  present  day  the  statute  of  uses  forms  a  part  of  the 
Ia\v  reguhiting  land  ownership  in  almost  every  state  of  the 
American  Union  where  it  has  not  been,  expressly  or  by  neces- 
sary implication,  repealed.^ 

§  777.  Future  and  executory  uses. —  At  the  common  law  no 
estate  of  freehold  can  be  limited  to  commence  in  faturo  with- 
out an  intervening  estate  to  support  it.'^  The  future  estate  was 
only  valid  as  a  common-law  remainder  if  it  were  immediately 
preceded  by  an  estate  in  freehold.  If  it  were  a  contingent  re- 
mainder it  must  vest  either  during  the  continuance  of  the  prior 
estate,  or  eo  instantv  that  that  terminated.''  So,  according  to 
common-law  rules,  no  estate  in  fee  simple  could  be  limited  as  a 
valid  remainder  after  another  precedent  estate  which  was  a  fee 
simple.*  But  when  the  courts  of  equity  had  established  uses 
upon  a  firm  foundation  as  valid  dispositions  of  property,  they 
permitted  not  only  estates  which  would  be  valid  at  the  common 
law  to  be  created  by  means  of  feoffments  to  use,  but  very 
many  other  interests  in  land  which  were  directly  contrary  in 
their  character  to  all  rules  of  the  common  law.  Accordingly 
an  estate  in  a  freehold  in  the  form  and  nature  of  a  use  might 
be  devised  to  commence  in  futuro  without  any  precedent  es- 
tate to  support  it,^  and  a  use,  called  a  shifting  use,  might  be 
limited  in  fee  to  A.,  which,  upon  some  future  contingent  event, 
would  pass  the  fee  in  the  use  to  another. 

The  future  estate  in  the  use,  like  a  remainder,  might  be  either 
vested  or  contingent.     If  the  future  use  was  vested,  and  if  it 

1  Bryan  v.  Bradley,  16  Conn.  (1844),  son  v.  Gibson,  1  Ohio  (1825),  439;  Gor- 

474;  Bowman  v.  Long,  20  Ga.  (18o9),  ham  v.  Daniels  (1851),   23  Vt.   600; 

142.148;  Booker  V.  Carlisle,  14  Bush  Sherman  v.   Dodge,   28  Vt.   20,   31; 

(77  Ky.,  18781,  154;  McNab  v.  Young  Ayer  v.  Ritler,  29  S.  C.  135,  7  S.  E.  R. 

(1876),    81     111.     11;    Milholland    v.  53:  Croxall  v.  Sherrerd,5  Wall  (U.  S.) 

Whalen,  43  Atl.  R.  (Md.,  1899),  43;  208,  282. 

Mathews  v.  Ward,  10  Gill  &  J.  (Md.,  22  Black.  Com.,  p.  160;  ipost,  §  854 

1802),  443;  Guest  v.  Farley  (1853),  19  3 2  Black.  Com.,  p.  108. 

Mo.  147;   Farmers'  &  M.  Ins.  Co.  v.  *2  Black.  Com.,  p.  172  et  seq. 

Jensen,  78  N.  W.  R.  1054;  De  Camp  ^See  §  778. 
V.  Dobbins,  29  N.  J.  Eq.  36, 43;  Thomp- 


§   777.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  1105 

was  not  embraced  by  any  of  the  exceptions  to  the  statute  of 
uses  elsewliere  enumerated/  it  was  executed  at  once  by  the 
statute,  although  the  actual  possession  and  enjoyment  of  the 
land  by  the  cestui  que  vse  were  indefinitely  postponed.  If 
the  future  use  was  contingent  it  was  not  executed  by  the  stat- 
ute until  it  became  vested  either  by  the  happening  of  the  event 
upon  which  its  vesting  depended,  or  on  the  coming  into  being 
of  the  cestui  que  use.  Where  property  is  disposed  of  by  will  to 
future  uses,  some  of  which  are  vested  and  others  contingent, 
the  former  are  executed  at  once  upon  the  death  of  the  testator, 
while  the  contingent  future  uses  are  executed,  if  at  all,  only 
■when  they  become  vested  upon  the  happening  of  the  future  con- 
tingency. "Where  the  vested  uses  which  were  executed  by  the 
statute  of  uses  exhausted  the  fee-simple  seizin  which  was  in 
the  feoffee  to  use,  so  that  the  cestui  que  use  of  these  vested 
though  future  uses  became,  by  the  statute,  seized  in  fee  simple 
of  the  whole  legal  estate,  an  apparently  difficult  question  arose 
as  to  the  existence  of  any  seizin  sufficient  to  support  the  con- 
tingent uses,  which  had  not  been  executed.  For  an  example  of 
this  we  may  instance  the  very  common  case  in  England  of  a 
feoffment  to  A.  and  his  heirs  for  the  use  of  B.  for  B.'s  life, 
which  is  vested,  remainder  to  the  use  of  B.'s  unborn  sons  in 
tail  (which  is  a  contingent  use),  remainder  in  fee  to  C,  which 
is  again  a  vested  use.  The  statute  executes  the  uses  in  B.  and 
C,  giving  B.  a  life  estate  at  law  and  C.  the  fee  simple  in  re- 
mainder. The  inquiry  then  is  whether  any  one  is  still  seized 
as  feofifee  to  the  use  of  B.'s  unborn  sons,  or  wdiether  that  con- 
tingent use  has  been  destroyed  or  absorbed.  By  the  execution 
of  the  uses  in  B.  and  in  C.  the  whole  legal  estate  and  seizin 
were  apparently  drawn  out  of  A.  and  his  heirs  and  exhausted, 
liut  the  statute  did  not  execute  the  contingent  use  for  B.'s  sons 
'///////  t/i'tj  t/yre  horn,  when  the  use  veste<l  in  theui.  The  inclina- 
tion of  the  coniinon-hiw  judges  was  against  the  validity  of  such 
<;ontingent  u.so8,  and,  so  far  as  possible,  they  were  assimilated 
U)  and  treated  as  contingent  remainders.'-  The  courts  dettu'- 
mined  in  tiie  time  of  J>ord  Coke  that,  despite  the  execution  of 
the  vested  uses  by  the  statute,  by  which  .iiiiiiiniit  ly  all  tliesei/iii 
was  drawn  out  of  the  feolVce,  a  certain  interest  <lenominated  a 
Hr.'nd'iUa  juriH  still  remained  in  him,  which  would  serve  to  liir- 

^AnU-,  t  IVi.  2 So.;  unU\  j).  1104. 

TO 


11  (>G  LAW    OF    MILLS.  [§  778. 

nish  a  seizin  as  a  support  for  the  contino^cnt  use,  and  Avliich 
Avould  also  enable  the  feoffee  to  use  to  defeat  the  use  by  aliena- 
tion in  the  same  Avay  that  a  contingent  remainder  might  bo 
defeated  hy  a  feoffment,  release  or  forfeiture  made  by  the  par- 
ticular tenant  before  the  contingent  estate  vested.^ 

It  was  absolutely  indispensable  that  some  one  should  remain, 
enfeoffed  or  seized  of  the  fee  to  support  the  contingent  use. 
And  while  the  majority  of  the  judges  indulged  in  the  fiction 
of  a  scintilla  j  117' is  in  the  feoffee,  though  by  the  statu  tor}--  exe- 
(^ition  of  the  vested  uses  all  the  seizin  had  apparently  been 
drawn  out  of  him,  others  permitted  their  subtle  imaginations 
to  run  riot,  and  assumed  the  existence  of  a  seizin  "  in  mihibus, 
ill  mare^  in  terra,  in  custodia  legis."  It  matters  not  which  ex- 
planation is  adopted,  we  are  equally  under  the  necessity  of 
believing  in  the  existence  of  something,  which,  if  we  are  con- 
sistent and  logical,  we  must  see  has  no  existence  whatever. 
"We  may  repudiate  the  technical  reasoning  and  subtility  with 
which  the  early  judges  have  surrounded  the  wdiole  subject  of 
contingent  uses,  and  adopt  the  modern  view,  commended  alike 
by  reason  and  good  sense,  that  the  vested  estate  which  B.  and 
C.  take  in  the  example  above  given  is  vested  in  them,  not  abso- 
lutely, but  subject  to  the  contingent  use  estate.  No  interest  of 
any  sort  whatever  remains  in  the  original  feoffee  to  use.  But 
no  estate  in  the  contingent  use  arises  until  the  happening  of 
the  contingent  event  or  the  birth  of  the  contingent  cestui  que 
use,  and  then  the  vested  estates,  which  are  vested  suh  modo  only 
in  B.  and  C,  ojyen  and  let  in  the  contingent  use  which  has  be- 
come vested.  ]S'o  scintilla  juris,  or  any  other  estate,  remains 
in  A.,  but  the  contingent  uses,  when  they  arise  and  become 
vested  estates,  take  effect  ex  relatione  out  of  the  original  seizin. 
Consequently  the  contingent  uses  are  not  defeasible  by  the 
feoffee,  as  is  a  contingent  remainder  ^  by  the  feoffment  or  for- 
feiture of  the  particular  tenant. 

§  778.  Shifting,  springing  and  contingent  uses. —  The  oper- 
ation of  the  statute  of  uses  in  executing  the  use  is  delayed,  as 
regards  all  future  uses  which  are  not  vested,  until  the  happen- 

1  Brent's  Case,  Dyer,  340a;  Chud-  184;  1  Sugden  on  Powers,  pp.  20-48 j 
leigh's  Case,  1  Rep.  120;  4  Kent,  2  Washburn  on  R  P.,  p.  420;  4  Kent, 
pp.  230-240.  Com.,  p.  239;  post,  %%  854,  855. 

2  Preston  on  Estates,  vol  I,  pp.  164- 


§  TTS.]  TESTAMENTARY    USES,  TRUST   ESTATES,  ETC.  HOT 

ing  of  the  contingent  event  upon  wliicli  the  future  use  will 
vest.^  This  event  must  not  be  too  remote,  for  a  perpetuity  can- 
not be  created  by  a  limitation  of  a  use. 

Future  uses  may  be  divided  into  springing,  shifting  and  con- 
tingent uses.  Springing  uses  are  such  as  are  to  arise  upon  the 
happening  of  some  future  event,  but  where  no  preceding  use 
is  created.  These  springing  uses  do  not  take  effect  in  deroga- 
tion of  any  other  interest,  except,  in  case  the  use  is  created  by 
Avill,  it  be  an  estate  in  the  heirs  of  the  testator,  who  would  have 
a  resulting  use.  Thus,  a  future  use  limited  to  A.  and  his  heirs 
on  the  death  of  B,,  who  is  alive  at  the  death  of  the  testator,  or 
a  use  which  is  to  commence  on  the  happening  of  any  other 
future  event,  is  a  springing  use.  A  springing  use  may  be  either 
vested  or  contingent.  In  the  example  given,  if  A.  is  a  living 
person  at  the  death  of  the  testator,  the  use  is  vested.  But  if  a 
use  is  limited  to  the  heirs  of  B.  after  a  life  estate  in  A.,  and  B. 
is  alive*  the  use  is  contingent  until  the  death  of  B.,  for,  until 
that  event  takes  place,  it  cannot  be  known  who  will  be  his 
heirs.^ 

Shifting  or  secondary  uses  are  such  as  take  effect  either  in 
defeasance  or  in  derogation  of  some  prior  use,  and  they  are 
always  contingent.  They  must,  of  course,  vest  an  estate  within 
the  period  permitted  by  the  rules  against  perpetuities.'  They 
may  be  limited  either  by  the  instrument  creating  the  prior 
estate  which  they  defeat,  or  they  may  be  created  by  the  execu- 
tion of  a  power  of  appointment  conferred  by  the  same  instru- 
ment. 

A  shifting  use  may  be  limited  to  arise  after  the  determina- 
tion of  a  prior  estate  in  fee,  and  in  defeasance  of  it,  if  the  vest- 
ing of  the  fee  is  not  too  remote.  J}y  means  of  a  shifting  uso 
the  fee  could  be  made  to  pass  from  one  person  to  another  suc- 
cessively. Such  an  estate  was  called  a  conditional  limitation, 
and,  as  it  always  followed  a  fee  simple  and  defeated  it,  was  not 
valid  at  the  common  law  as  a  remainder,  though  it  was  sus- 
tained when  in  the  form  of  a  future  use  or  trust,  or  later  as  an 
executory  devise  under  the  statute  of  wills.  But  a  futur<>  usi^ 
may  bo  limite<l  to  vest  after  a  fee  tail  at  any  future  period, 

>  Aiifr,  %  777.  j)p.  flOO-ni.T;  2  f'lMiiso.  Difiost.  20:1;  4 

2li    Waslibiirn    on   Real    Troporty,     Konf.  Com.,  p.  LMH.     r/.  }<  h:»7. 

»2  Uliiek.  Com.,  p.  iijl;  ]>ost.  ^  SSj. 


11  OS  LAW   OF   AVI  U.S.  [§  779. 

iiiul  no  porpotuity  is  tliereby  created,  because  the  tenant  in  tail 
always  has  the  power  to  convey  tlie  fee  tail  by  a  common  re- 
covery, and  to  thus  destroy  the  shifting  use  or  any  contingent 
remainder  which  may  follow  liis  estate.^ 

A  third  species  of  future  use  is  called  a  contingent  use,  which 
is  where  a  use  is  limited,  somewhat  like  a  contingent  remainder 
at  common  law,  as  to  the  children  of  A.  who  may  be  alive  at 
bis  death  after  a  life  estate  in  A.  To  such  uses  the  rule  ap- 
plicable to  contingent  remainders  is  applied,  and  they  are  de- 
feated by  the  destruction  of  the  particuUir  estate,^  or  by  the 
fact  that  the  prior  estate  is  not  sufficient  to  support  them,  as 
Avhere  it  is  not  an  estate  of  freehold.  And  the  general  rule  is 
that  if  a  future  estate  can  be  construed  to  be  a  contingent  re- 
mainder,  it  will  go  into  effect  as  such,  and  not  as  a  shifting  or 
springing  use  under  the  statute  of  uses. 

Shifting  and  springing  uses  are  in  their  character  somewhat 
similar  to  executory  devises.  But  uses  differ  from  executory 
devises  in  that  they  are  usually  created  by  deed,  and  more  par- 
ticularly because  they  require  that  there  shall  be  a  person  seized 
to  the  use  at  the  time  the  contingency  happens  and  future  use 
vests,  for  otherwise  the  use  cannot  be  executed  by  the  statute. 
If,  therefore,  the  estate  of  the  feoffee  is  destroyed  prior  to  the 
vesting  of  the  future  use,  the  use  is  also  destroyed,  because  it 
cannot  be  executed.  But  as  an  executory  devise  is  a  convey- 
ance not  operating  by  a  transmutation  of  possession,  i.  e.,  by 
livery  of  seizin,  but  wholly  under  the  statute  of  wills,  the  free- 
hold can  be  transferred  to  the  executory  devisee  at  once  when 
the  future  date  arrives.'  And  in  both  cases  a  fee  may  be  lim- 
ited to  take  effect  after  a  fee. 

§  779.  The  law  of  modern  trusts. —  A  use  prior  to  the  stat- 
ute was  a  mere  confidence  reposed  by  one  person  in  another 
creating  a  moral  obligation  which  was  enforced  only  by  a  court 
of  equity  acting  upon  the  conscience  of  the  feoffee  to  use, 
though  to  all  other  intents  and  purposes  the  feoffee  had  an  ab- 
solute and  legal  ownership.  The  terms  "  nse,  trust  and  confi- 
dence'''' are  in  the  statute  of  uses,  and  had  the  statute  in  fact 
abolished  uses,  as  it  was  intended  that  it  should,  no  line  of  dis- 
tinction between  an  ancient  use  and  a  modern  trust  would  have 

1  4  Black.  Com.,  p.  429.  3  2  Black.  Com.,  p.  334.    See  also 

2  2  Black.  Com.,  pp.  333,  334.  jiost,  %%  874,  875. 


§  TSO.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  1109' 

been  necessary.^  After  the  effective  operation  of  the  statute  of 
uses  had  been  nullified  by  the  many  exceptions  which  were 
made  to  it,  a  comprehensive  system  of  new  property  interests, 
which  were  cognizable  only  in  equity,  vras  created  and  regulated 
under  the  appellation  of  trusts.  A  trust  is  a  iise  which  is  not  ex- 
ecuted Ijy  the  statute^  while  all  interests  of  an  equitable  charac- 
ter which  are  converted  into  legal  estates  by  the  operation  of 
the  statute  of  uses  may  be  called  uses  to  distinguish  them  from 
those  which  are  not  thus  executed.  A  trust  is  what  a  use  was 
before  the  statute.  A  trust  in  land  is  an  interest  in  the  land 
wholly  distinct  from  the  legal  estate.  In  so  far  as  the  statute 
of  uses  has  not  been  repealed  in  America,  no  difference  exists 
between  the  ancient  use  and  the  modern  trust  in  principle, 
though  a  great  difference  exists  in  the  application  of  the  prin- 
ciple and  in  the  rules  by  which  the  interest  of  the  c^s^w*  que  use 
or  trust  is  protected.  For  modern  trust  estates  are  largely  sub- 
ject to  common-law  rules.  They  descend  in  the  same  lines  as 
legal  estates,  and  where  their  alienation  is  not  limited  by  the 
terms  of  the  instrument  by  which  they  are  created,  they  may 
be  devised,  assigned  and  otherwise  disposed  of  to  the  same  ex- 
tent as  legal  estates.-  The  disposition  made  by  the  beneficiary 
will  be  binding  upon  the  trustee.  But  though  equity  will  thus 
follow  the  law,  it  does  not  always  adhere  closely  to  technical 
legal  rules,  particularly  in  the  case  of  testamentary  trusts, 
when  to  do  so  would  often  overcome  the  intention  of  the  tes- 
tator. Thus  a  beneficiary  to  whom  the  testamentary  trustee  is 
to  pay  income  alone  diu'ing  his  life  has  no  legal  interest  what- 
ever in  the  corjm.s  which  is  alienable,  though  he  may,  in  the 
absence  of  any  prohibition  in  the  will,  assign  his  share  of  the 
income,  and  the  trustee  must  pay  to  his  assignee.^  But  when 
the  trust,  having  C(;ased  to  be  active,  is  executcid  by  the  statute, 
and  the  legal  title  to  tin;  cdi-jkim  vests  in  the  cistnl  tjiu'  (runty 
he  becoMK.'S  capabl*;  of  giving  a  valid  conveyance  of  the  estate, 
and  a  court  of  (Mjuity  will  decree  that  the  trustee  shall  convey 
the  legal  (•st;ite  as  he  kIijiII  direct.' 

.■i  7S0.  Statutes  res^uhilhii;  tnisls  in  <lie  I  niled  Stales. — 
In  the  states  of  .New  York,' ('aliforni.i,"  Michigan,  Minnesota 

'  I  K(;iit,f).  L'Ml ;  1  SiMjiic**,  K«|.  Jiiri.H.,  *  lA!\vin  (ui  TnistH,  p.  170;  Perry  on 

pp.  491.  W.i.  V.>\.  TniHtH.  ,^:{7I. 

2  Auli,  i  7:»l.  ■•  »  !L  S.  (sth  (.(!.).  p.  2I.'»7.  ^  W. 

»In  ro  Neil,  02  Imw  TiriicH,  019.  «C«.<lo.  g;5  H47,  h:»7,  H07,  HOO. 


1110  LAW    OF    WILLS.  [§  780. 

tind  "Wisconsin,  tlic  statute  of  uses  has  been  repealed,  and  par- 
ticular classes  of  trusts  have  been  declared  by  statute  to  be 
valid  to  the  exclusion  of  all  other  trusts.  Passive  trusts  are 
abolished  by  these  statutes  and  the  legal  and  equitable  inter- 
ests are  merged  in  the  beneficiary.^  And  all  trusts  which  can- 
not be  classified  under  any  one  of  the  four  heads  which  are 
■enumerated  below  are  invalid,  though  they  are  active  trusts, 
and  the  legal  and  equitable  estates  are  at  once  united  in  the 
person  who  is  named  as  the  beneficiary  of  the  trust.  Valid 
express  trusts  are  thus  classified  by  these  statutes:  1.  Trusts 
to  sell  lands  for  the  benefit  of  creditors.  2.  Trusts  to  sell, 
mortgage  or  lease  lands  for  the  benefit  of  legatees,  or  to  pay 
charges  thereon.  3.  Trusts  to  receive  the  rents  and  profits  of 
land,  and  to  apply  them  to  the  use  of  any  person  for  life,  or 
for  a  period  the  length  of  which  is  not  obnoxious  to  the  rule 
against  perpetuities.  4.  To  receive  the  rents  and  profits  of 
land  and  to  accumulate  them  during  the  minorities  of  minors 
in  being.  In  any  case  which  in  terms  comes  within  one  of  the 
classes  before  mentioned,  the  whole  legal  estate  is  vested  at 
once  by  the  will  in  the  trustees  for  the  purposes  of  the  trust. 
The  trustee  has  the  right  to  the  possession,  and  he  is  to  all  in- 
tents and  purposes  the  legal  owner,  though  the  extent  of  his 
powers  over  the  property  depends  upon  the  express  language 
of  the  will.2 

Under  these  statutes  the  cestui  que  trust  acquires  no  estate  in 
the  land  at  law.  A  beneficiary  cannot  sue  the  trustee  at  law 
for  his  share,  where  the  amount  thereof  has  not  been  deter- 
mined, nor  the  accounts  of  the  trustee  settled.'  He  has  merely 
a  right  to  the  receipt  of  the  income  of  the  property  in  trust, 
which  he  may  enforce  in  equity  by  a  proceeding  to  compel  the 
trustee  to  act  and  to  account,  or  by  a  bill  to  secure  his  removal 
and  the  appointment  of  another  trustee  in  his  place.  Whether 
the  trustee  of  a  trust  which  is  valid  under  these  statutes  shall 

1  Townsend  v.  Frommer,  125  N.  Y.  McDevitt  (1878),  72  N.  Y.  556;  Rani- 
446;  Wright  v.  Douglas.  7  N.  Y.  561;  say  v.  De  Remer,  20  N.  Y.  S.  143,  G5 
Braker  v.  Devereaux,  8  Paige  (N.  Y),  Hun,  212;  Gifford  v.  Rising  (1S89),  51 
513,  518;  Jolmson  v.  Fleet,  14  Wend.  Hun,  1;  Buchanan  v.  Little,  154  K  Y. 
(N.  Y.)  176,  180;  Greene  v.  Greene,  125  147,  47  N.  E.  K.  970. 

N.  Y.  506.     See  also  g  773.  3  Judgment  (1896)  39  N.  Y.  S.  971.  7 

2  Henderson  V.  Henderson,  113  X.Y.  App.  Div.  66,  afTirmed.  Husted  v. 
1  (1889),  20  N.  E.  R.  814;  Garvey  v.     Thompson  (N.  Y.,  1899),  53  X.  E.  R.  20. 


§   TSl.]  TESTAMEXTAET    USES,  TRUST    ESTATES,  ETC.  1111 

have  the  power  of  conveying  the  fee  by  sale  or  mortgage  de- 
pends altogether  upon  the  language  of  the  will  and  the  nature 
of  the  estate.^  "Where  the  power  of  sale  is  not  expressly  given 
it  will  not  ordinarily  be  implied,  unless  the  carrying  out  of  the 
testator's  intentions  imperatively  requires  a  sale.^ 

§  TSl.  Language  by  which  a  trust  may  be  created  —  The 
duration  of  the  estate  taken  by  the  trustee. —  Xo  particular 
form  of  words  is  necessary  to  be  employed  in  order  to  create  a 
trust.  The  testator  need  not  employ  the  word  "trust"  in  his 
will.  If  he  has  named  a  person  in  that  instrument  and  has 
directed  him  to  carry  out  all  or  a  portion  of  the  provisions 
which  have  been  made  for  others  therein,  and  the  person  thus 
named  cannot  execute  such  provisions  of  the  will,  except  the 
legal  title  to  the  property  shall  be  vested  in  him  as  a  trustee, 
then  that  person  will  be  a  trustee  by  implication,  though  there 
may  have  been  no  direct  devise  of  the  legal  title  to  him  and 
the  word  "  trustee  "  or  "  trust "  was  not  used.  And,  on  the  other 
hand,  though  property  may  have  been  apparently  given  to  a 
person  named,  absolutely  for  his  own,  he  will  be  by  implication 
held  to  take  it  as  a  trustee,  where  the  provisions  of  the  will 
imperatively  require  that  a  trust  shall  be  created  in  him.  He 
will  take  as  a  trustee  where  it  will  be  impossible  to  carry  them 
out  otherwise.  In  all  such  cases  the  existence  of  an  intention 
on  the  part  of  the  testator  to  create  a  trust,  though  not  ex- 
pressly stated,  is  said  to  be  inferred  from  the  whole  will.  But 
the  question  whether  a  valid  trust  has  been  created,  either  ex- 
pressly or  by  inference,  is  quite  distinct  from  the  determina- 
tion of  the  quantity  of  the  estate  which  is  conferred  upon  the 
trustee. 

The  question  whether  one  who  is  named  ns  a  tnistiM^  takes 
<iny  estate  is  always  to  bo  answered  by  ;ti>|)lying  the  tei-ins  of 
the  statute  of  uses,  or  of  tlie  local  statute  authorizing  the  crea- 
tion of  trusts.  If  the  trust  is  ncliiu;  and  in  (me  jxrniittxl  hij  tho 
st<itate^  tli<3  question  as  to  the  (|iiiiMtity  of  the  iiilercst,  /.  <•.,  as 
to  the  natuHi  and  the  duration  of  tho  estate  which  tlu;  trustee 
is  to  take,  is  one  of  intention  which  is  to  be  ascertained  from  a 
construction  of  tlio  language  of  the  will.  An  estate  ot  inherit- 
ance in  a  trust  has  always  been  capable  of  being  created  with- 
out the  insertion  of  technical  wonis  of  inheritance  or  of  suc- 

1  I'i.Ht.  i.%  1H'.\,  THJ.  -  .1;//.  .  .'  f,'.l'.». 


1112  LAW    OF   WILLS.  [§  TSl. 

cession.'  If  the  j'>u7'poses  of  t/ie  trust  require  that  the  trustee 
shall  tiil-e  the  fee  shnj>Ie  of  the  legal  interest  in  order  that  those 
purposes  may  be  carried  out,  he  will  take  an  estate  of  inherit- 
ance, thouirh  no  words  of  inheritance  have  been  used  bv  the 
testator  in  demising  tl\e  legal  interest.  Hence,  if  the  interest 
given  to  the  beneficiary,  though  it  was  devised  to  him  in  inde- 
terminate language,  is  greater  than  the  legal  interest  devised 
to  the  trustee,  the  trust  estate  will  be  enlarged  in  the  trustee 
to  answer  all  the  purposes  of  the  trust.  If  the  carrying  out  of 
the  purposes  of  the  trust  require  that  the  trustee  shall  take  a 
fee,  equity  will  create  a  fee  simple  in  him  by  implication  with- 
out the  use  of  the  word  •'  heirs."  ^  Though  the  interest  in  the 
beneficiaries  he  expressly  for  life,  the  estate  of  the  trustee  may 
•be  a  fee  simple,  if  the  powers  conferred  upon  him  by  the  will 
require  that  he  shall  take  a  fee  for  their  full  and  proper  exer- 
cise.' But  where  the  legal  estate  in  the  trustee  is  in  express 
terms  for  the  life  of  the  trustee  only,  it  will  not  be  enlarged  tO' 
a  fee  simple  by  the  fact  alone  that  the  estate  in  the  beneficiaries 
is  a  fee  simple.  In  such  case,  while  a  court  of  equity  has  no 
power  to  disregard  the  intention  of  the  testator  by  creating  a 
fee  where  he  has  given  only  a  life  interest,  it  may  appoint  a 
new  trustee  to  execute  the  trust  in  the  place  of  the  trustee  who 
has  died. 

^Ante,  §  684  Wheeler,  7  Mass.  189,  198;  Angell  v. 

2  Chase  v.  Cartwriglit,  53  Ark.  358,  Eosenbury,  12  Mich.  266;  Stearns  v. 

14  S.  W.  R.  90;  Le  Breton  v.  Cook,  107  Pahiiei;,  10  Met.  (Mass.)  32, 35;  Boston 

Cal.  410,  40    Pac.   R.  522;    Korn    v.  Safe  Deposit  Co.  v.  Mixter,  146  Mass. 

Cutler,   26    Conn.    358;    Deering    v.  100,  15  N.  E.  R.  141;  Traphagen  v. 

Adams,  37  Me.  264,  273;  Lunt  v.  Lunt,  Levy,  45  N.  J.  Eq.  448,  453;  Cuniber- 

108  IlL  (1884),  307;  Steib  v.  AVhite-  land  v.  Graves,  9  Barb.  (N.  Y.)  595; 

head,    111   IlL   247  (1884);   Green  v.  Welch  v.  Allen,  21  Wend.  (N.  Y.)  147: 

Grant,  143  111.  61,  32  N.  E.  R.  369;  Fisher  v.  Field,  10  Johns.  (N.  Y.)  505; 

Devries  v.  Hiss,  72  Md.  560  (1890),  20  Carney  v.  Kain,  40  W.  Va.  650.  23  S. 

AtL  R  131  i  Farquharson  v.  Eichel-  E.  R.  758;  Brown  v.  McCall,  44  S.  C 

berger,  15  Md.  73;  Cleveland  v.  Hal-  503.     Compare  ante,  %  684 
lett,  6  Cush.  CMass.)  403.  406;  Ester-        3De  Haven  v.  Sherman,  131  IlL  115, 

brooks  V.  Tillinghast,  5  Gray  (Mass.),  22  N.  E.  R.   711.    E.  g.,  where  the 

21;  Mayhew  V.  Godfrey,  103  :Mass.  290,  trustee  is  to  pay  income  to  A.  for  hi* 

292;  Stanley  v.  Colt,  5  WalL  (U.S.;  life,  icith  a  poicer  to  selUhe  land  and 

168;  Holt  v.  Holt,  114  N.  C.  241,  18  S)  to  pay  the  proceeds  to  A.  or  his  heirs 

E:  R.  967;  Govdd  v.  Lamb,  11  Met.  absolutely.   Blount  v.  Atalker,  31  S.  C. 

(Mass.)  87:    Greenough  v.  Wells,  10  13,9  S.  E.  R.  804;  Ricketfs  Appeal 

Cush.  (Mass.)  571, 577 ;  King  v.  Parker,  (Pa.),  12  AtL  R.  60. 
9  Cush.  (Mass.)  77,  81;    Newhall  v. 


§   TSl.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC-  1113 

And  if  an  estate  \wfee  simjfle  is  expi'essly  given  to  ihe  trustee , 
and  the  purposes  of  the  trust  do  not  require  such  an  estate  in 
him,  a  resultijig  trust  ^Yill  ensue  for  the  benefit  of  the  heirs  of 
the  testator,  or  for  the  residuary  devisee,  in  that  portion  of  the 
beneficial  interest  which  cannot  be  applied  to  the  original  pur- 
poses of  the  trust.^ 

In  the  absence  of  statute  a  devise  to  a  trustee  without  words 
of  inheritance,  where  the  trust  does  not  require  a  larger  estate, 
may  create  a  life  estate  only  in  the  trustee.-  But  a  statute 
which  enacts  that  every  devise  of  land  shall  be  considered  as 
a  devise  of  the  fee,  unless  that  construction  shall  be  inconsist- 
ent with  the  intention,  is  applicable  to  a  devise  to  a  trustee. 
The  trustee  takes  the  fee,  but  he  holds  it  only  for  such  period 
as  the  trust  estate  lasts,  and  on  the  termination  of  the  trust 
the  legal  and  equitable  titles  to  the  fee  are  merged.^  But  in 
most  cases  it  is  held,  even  where  a  statute  of  this  sort  exists, 
that  where  no  express  estate  is,  in  terms,  devised  to  the  trustee, 
and  the  purposes  of  the  trust  Avill  be  completely  performed 
during  his  life,  or  during  the  life  or  lives  of  the  beneficiaries, 
the  trustee  will  onh'  take  an  estate  for  his  life  or  the  life  or 
lives  of  the  beneficiaries.  And,  upon  the  termination  of  the 
trust,  the  le^gal  and  equitable  interests  are  merged  by  the  stat- 
ute of  uses  in  that  person  who,  under  the  will,  has  the  next 
succeeding  estate.*     So,  even  when  an  estate  is  expressli/'lim- 

i.l/f^c,  g473.  202;  Mayliew  v.  Godfroy.  103  Ma&s. 

-'In   re   Hudson,  13   Reports.  54G;  21)0,  2'Jl:  Abell   v.   Abi-ll.  75  :^Id.  44 

Baker  v.  McAden,  118  N.' C.  740,24  (lSt)2i,  23  Atl.  R.  71;  Wliall  v.  Con- 

S.  E.  R  r,31.  verse,  140  JIass.  345  (18SM),  15  N.  E. 

'Ilaynesuortli  v.  Goodwin,  35  S.  C.  R.  000;  Perkins  v.  Stearns.  103  Mass. 

54.  14  S.  E.  R  4<J1.  247  (1H<J5),  3'J   N.  E.  R.   1010;    In  re 

*  Powell   V.   (ilenn   (1852),  21    Ahu  Chapin,  148  .Alass.  588.  20   N.  E.  R. 

4.58;  Beers  V.  Narnunore,  01  Conn.  13  195;  Coulter  v.  Robertson  (1852),  24 

(1H»I),  22  AtL  li.  1001;  Smith  v.  Dun-  Miss.  278;  Pugli  v.  Hays.  115  Mo.  424. 

woody  (1850).  19   Ga.  238;  liiiKley  v.  21   S.    W.    R.   23;    Hoirman    v.    Van 

Kennedy,  81  Gji.  721  (1888),  8  S.  E.  Syckel.  44  N.  J.  E.|.  359.  14   Atl.  R. 

li.  742,81  Ga.3.59.  8S.  H  R  737;  Bax-  470;  Roarty   v.   Sinitli.  53  N.  J.  E«j. 

ter  V  W'tMX,  20  S.  H   R  325.  93  (Ja.  253,  31  Atl.  R  1031;  In  re  Sniitli.  131 

334;  West  v.  Eitz(1884),  109  III.  425;  N.   Y.   239.   30    N.    E.  R  130;    Hue    v. 

Walton   V.    K«.llanHlH?e,    131    111.    147  VinKut,   117  N.  Y.  201.22   N.   E.  R. 

(1889).   2.3    N.    E.    R   332;    Hobin    v.  933;   In  re  .Marshall's  Estate.  147  Pa. 

0«den,  72   111.    A|.p.   24*2;  .lackw.n  v.  St.  77,  23  Atl.  1(.  391;  Sharps  Estate. 

Thoinimon.  24.  Atl.  li.  459.  h|  M,..  hJ;  1,m  Pa.  St.  2H9;   Payni«  v.  Sale,  2  Dev. 

Morne  v.   .Mr.rell,  82  .Me.  80  (|mm9).  19  tV    Bjit.  (.N.   ('.)   F-«|.  455;  SnellinK  v. 

Atl   H  '.tT    lelgner  v.  Jlooi»er,80  .Md.  I.jiMiar,  32  S.  ('.  259,  10  S.  E.  R  825; 


1111: 


LAW    OF    WILLS. 


[§  781. 


ited  to  a  trustee  in  fee,  if  the  purpose  of  the  trust  is  fuliilled  or 
ceases  during  the  life  of  a  cestui  que  trust,  and  the  legal  title  is 
devised  to  another,  the  estate  of  the  trustee  is  cut  down  to  an 
estate  for  the  life  of  the  beneficiary.^ 

Thus  where  land  is  devised  in  fee  in  trust  in  express  terms 
(and  the  same  rule  w^ould  of  course  apply  in  those  states  where 
an  estate  in  fee  may  be  created  without  the  word  "  heirs  "), 
and  the  beneficial  interest  is  disposed  of  for  the  life  of  the 
beneficiary  only,  with  a  devise  of  the  remainder  absolutely  in 
fee  to  others,  the  statute,  immediately  on  the  termination  of 
the  life  interest,  executes  the  trust  in  the  remaindermen.-  It 
follows  logically  from  this  that  the  default  of  a  trustee  who  is 
to  hold  only  during  the  life  of  the  testator's  widow  in  not 
bringing  an  action  against  one  who  claims  the  fee  by  prescrip- 
tion, or  any  action  or  neglect  of  his  in  regard  to  the  fee,  does  not 
prejudice  the  remaindermen  whom  the  trustee  does  not  rep- 
resent.' 


Blount  V.  Walker,  31  S.  C.  13;  Covar 
V,  Cantelon,  25  S.  C.  35;  Smith  v, 
]\Ietcalf,  1  Head  (38  Tenn.,  1838),  64; 
Ellis  V.  Fisher,  3  Sneed  (33  Tenn., 
1854),  331. 

1  Walton  T.  Follansbee,  131  111.  147; 
Liptrott  V.  Holmes,  1  Ga.  381;  Mor- 
ton V.  Barrett,  22  Me.  257;  Abell  v. 
Abell,  75  Md.  44,  23  Atl.  R.  71;  Whall 
V.  Converse,  146  Mass.  335  (1888),  15 
N.  E.  R  660;  Mayhew  v.  Godfrey,  103 
Mass.  290,  292;  Cleveland  v.  Hallett, 
6  Cush.  (Mass.)  404,  407;  Pearce  v. 
Savage,  45  Me.  90;  Roarty  v.  Smith, 
53  N.  J.  Eq.  253.31  Atl.  R  1031;  In  re 
Smith,  131  N.  Y.  239,  30  N.  E.  R.  130; 
Norton  v.  Norton,  2  Sandf.  (N.  Y.), 
296;  Ward  v.  Amory,  1  Curtis.  C.  C. 
419;  Doe  v.  Davis,  1  Q.  B.  438:  Doe 
V.  Barthop,  5  Taunt.  382;  Baker  v. 
Greenwood,  4  Meeson  &  Welsby,  421 ; 
Doe  V.  Timins,  1  B.  &  Alder.  547; 
Doe  V.  Ewart,  7  Ad.  &  El.  636. 

-'Adams  v.  Adams,  6  Q.  B.  860,  9 
Jur.  300;  Healey  v.  Alston,  25  Miss. 
190,  and  cases  cited  in  note  4.  p.  1113. 

3  Bagley  v.  Kennedj-,  81  Ga.  721,  8 
S.  E.  R.  742.     A  trust  for  a  married 


woman  and  her  husband,  for  their 
joint  lives,  and  if  she  should  survive, 
then  to  her  and  lier  children  for  her 
life  or  widowhood,  but  on  her  deatli 
or  remarriage  to  be  equally  divided 
among  the  children  and  the  issue  of 
those  deceased,  terminates  on  the 
deatli  of  the  husband.  The  wife  and 
the  then  living  children  take  a  legal 
estate  in  fee,  and  their  deed,  with  liv- 
ery of  seizin,  will  defeat  the  con  tin" 
gent  remainder  to  the  issue  of  one  of 
the  children.  Snelling  v.  Lamar,  32 
S.  C.  259,  10  S.  E.  R.  825.  Where  the 
testator  has  created  a  trust  to  last 
for  a  specified  period,  at  tlie  termina- 
tion of  which  the  land  held  in  trust 
is  to  be  sold  and  divided,  the  trust 
cannot  be  terminated  before  the  ex- 
piration of  the  trust  period  by  the 
fact  that  a  portion  of  the  land  in 
trust,  in  which  the  testator  was  a 
tenant  in  common,  has  been  sold 
under  an  order  of  the  court  in  an  ac- 
tion for  a  partition.  Tlie  proceeds  of 
the  sale  must  be  held  on  the  trust 
declared  in  the  will.  In  re  Chapin, 
148  Mass.  588,  20  N.  E.  R  195. 


§   TS2.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  1115 

§  782.  Trusts  to  sell  land  —  ^Vlioii  naked  power  of  sale  only 
is  created. —  The  question  of  the  existence  of  a  power  of  alienat- 
ing the  property,  real  or  personal,  which  is  the  subject-matter 
of  the  trust,  is  to  be  answered  solely  and  always  from  the  terms 
of  its  creation.  The  rule  as  regards  alienation  is  different  in 
the  case  of  a  passive  and  in  the  case  of  an  active  trust.  In  the 
case  of  a  passive  trust,  which  is  executed  at  once  by  the  statute 
of  uses,  the  legal  and  the  equitable  interests  are  merged  thereby 
in  the  beneficiary,  the  trust  is  forever  extinguished,  and  a  con- 
veyance b}"  the  trustee  of  the  legal  interest  is  not  necessary, 
except  perhaps  as  a  matter  of  excessive  caution.  A  convey- 
ance by  the  trustee  is  always  necessary  to  be  executed  where 
the  trust  is  active.  And  in  the  case  of  all  active  trusts,  in  the 
absence  of  an  express  or  implied  prohibition  against  alienation, 
it  is  very  probable  that  a  deed  of  conveyance,  executed  by  the 
trustee  and  the  beneficiary  or  beneficiaries  of  the  trust,  would 
be  sufficient  to  pass  the  title  according  to  the  terms  of  the  trust. 
The  legal  and  equitable  interests  would  be  merged  by  their 
union  in  the  person  to  whom  the  deed  of  conveyance  had  been 
given.  And  of  course  it  is  always  possible  for  the  testator  to 
confer  aft  express  or  implied  power  of  selling  the  legal  estate 
upon  a  trustee,  which  shall  be  Ijinding  upon  the  cestui  que  trust, 
provided  it  shall  be  exercised  by  the  trustee  in  good  faitii.  In 
that  case  the  beneficiary  need  not  join  in  the  execution  of  tiie 
deed  of  conveyance  unless  his  assent  is  required  by  the  tenns 
of  the  will  creating  the  power  of  sale. 

A  devise  of  land  in  trust  to  sell  and  to  dispose  of  the  proceeds 
according  to  the  directions  of  the  will  is  an  active  trust  which 
is  not  executed  by  the  statute  of  uses.  The  difliculty  is  to  de- 
termine whether  a  trust  estati;  is  created  giving  th(^  trustee  an 
actual  estate  in  tJce  lainl,  or  whether  he  has  iiici'dy  a  iiul'/nl 
j)()iK(rr  of  sale.  Kithcr  m;iy  be  created  without  the  emph)vment 
of  technical  words  of  inheiitanee.'  'IMio  intention  of  the  testa- 
tor is  to  be  ascertained  from  the  terms  which  he  has  used.  Jf 
he  devise  land  expressly  to  W\it  trustee  or  to  his  exeeutoi',  as  to 
A.  "in  trust  to  sr//,'^  it  may  l)e  assumed  that  he  meant  to  giv«» 
him  a  legal  estate  in  the  fei!,  which  will  eiiahle  him  to  sc.'ll  and 
to  deliver  possession,  'i'lu;  trustr-e  may  then,  until  l\u)  ex(!cu- 
tion   of  the  power  of  sale   by  him,  crtiiti-ol   the  ])ropej-ty  as  a 

^.lH^•,  ^  7bl,  I).  1111. 


IIIG 


LAW    OF    WII.T.S. 


[§ 


trustee  and  collect  and  expend  the  rents  and  profits  for  trust 
purposes.  And,  though  there  be  no  language  of  express  de- 
vise to  the  trustee,  if  he  is  directed  to  take  possession  of  the 
land,  or  if  duties  are  imposed  upon  him  which  require  an  estate 
in  him  for  their  proper  performance,  he  will  take  an  estate  in 
the  land  itself  and  not  a  mere  power  of  sale.  Where  the 
trustee  has  the  legal  title  in  the  land,  and  the  power  of  sale 
conferred  on  him  in  connection  therewith  is  mandatory,  he 
may  convey  the  fee  absolutely  without  the  consent  of  the  ben- 
eficiary.^ 

A  mere  direction  to  an  executor  or  trustee  to  sell  land,  though 
the  estate  is  not  otherwise  disposed  of,  does  not  give  him  an 
estate.  All  that  he  has  is  a  naked  power,  without  the  right  to 
the  possession  or  the  right  to  collect  or  disburse  the  rents  and 
profits.  The  land  descends  to  the  testator's  heirs  subject  to 
the  execution  of  the  power  of  sale.-     The  estate  of  the  heirs 


iHairston  v.  Dobbs,  90  Ala.  589, 
3  S.  R  147;  SchoU  v.  Olmstead,  84 
Ga.  693,  11  S.  E.  R  541;  Beers  v.  Nar- 
ramore,  61  Conn.  13,  22  Atl.  R.  1061; 
De  Vaughan  v.  M'Leroy,  82  Ga.  687; 
Clary  v.  Fraser,«  Gill  &  J.  (Md.)  403; 
Gray  v.  Lynch,  8  Gill,  403:  Seeger  v. 
Leakin,  Id  Md.  500,  25  Atl.  R.  862: 
Carter  v.  Van  Bokkelen,  20  Atl.  R. 
781,  73  Md.  175;  Greenough  v.  Wells, 
10  Cush.  (Mass.)  571;  Gibbs  v.  Marsh, 
2  Met.  (Mass.)  243;  Allen  v.  Dean,  148 
Mass.  594,  20  N.  E.  R.  314;  Brearly  v. 
Brearly,  9  N.  J.  Eq.  21;  Lindsley  v. 
0-Reilly,  50  N.  J.  Eq.  636,  15  Atl.  R. 
379;  Toronto  G.  T.  Co.  v.  C,  B.  &  Q. 
Co.,  123  N.  Y.  37,  25  X.  E.  R.  198; 
Jackson  v.  Ferris,  15  Johns.  246;  Ames 
V.  Ames,  15  R.  I.  12;  Nelson  v.  Car- 
rington,  4  Munf.  (Va.)  332;  Webster 
V.  Thorndike,  11  Wash.  390,  39  Pac. 
R.  677;  Gart  v.  Baldwin,  2  Ves.  646; 
Doe  d.  Booth  v.  Field,  2  Barn.  &  AdoL 
564. 

-Rubottom  V.  :Morrow,  24  Ind.  202, 
204;  Todd  v.  Wortnian.  45  N.  J.  Eq. 
723,  18  Atl.  R.  843.  A  provision  giv- 
ing the  real  and  personal  property  to 
the  executor,  in  trust  to  invest  at  in- 
terest, impliedly  authorizes  the  ex- 


ecutor to  sell  the  real  estate.  Daven- 
port V.  Kirkland,  40  N.  E.  R.  304,  156 
III.  169;  Whittemore  v.  Russell,  i<0 
Me.  297,  14  Atl.  R.  197;  Pratt  v.  Rice, 
7  Cush.  (Mass.)  209,  212;  Braman  v. 
Stiles,  2  Pick.  (Mass.)  460,  464;  Green- 
ough V.  Wells.  10  Cush.  (Mass.)  571, 
577;  Perrin  v.  Lepper,  72  Mich.  454. 
40  N.  W.  R  859;  Chasy  v.  Gowdry, 
43  N.  J.  Eq.  95,  9  Atl.  R  580;  Harris 
v.  Strodl,  132  N.  Y.  392,  30  N.  E.  R. 
962;  Henderson  v.  Henderson,  113  N. 
Y.  1,  11,  20  N.  E.  R  814;  King  v.  Fer- 
guson, 2  Nott  &  McCord  (S.  C),  588; 
Reeves  v.  Brayton,  36  S.  C.  384,  307, 
15  S.  E.  R  658.  Where  a  testator  di- 
rects his  executor  to  sell  his  lands  as 
soon  as  convenient,  but  makes  no  dis- 
position of  them  until  they  are  sold, 
the  lands  descend  to  his  heirs,  who 
are  entitled  to  the  rents  and  profits 
of  them  until  the  sale  is  made.  Todd 
V.  Wortman,  45  N.  J.  Eq.  723,  18  Atl. 
R  843.  A  charge  of  the  legacies 
upon  the  land  of  the  testator  which 
is  devised  in  a  residuary  clause,  with 
a  direction  that  the  executors  may 
sell  any  part  of  the  estate  not  spe- 
cifically devised  at  any  time  they 
shall  deem  it  convenient,  empowers 


§  TS2.] 


TESTAMEXTAKT    USES,  TKUST    ESTATES,  ETC. 


HIT 


Avhile  alienable,  pending  the  execution  of  the  power  of  sale,  is 
taken  by  their  alienee  subject  to  the  power,  and  the  title  of 
the  subsequent  purchaser  under  the  power  is  paramount  to 
that  of  the  purchaser  from  the  heirs.^  And  where  the  testator, 
after  directing  his  executor  or  a  trustee  to  sell  his  land,  devises 
it  to  others,  the  former  takes  no  estate  or  interest  in  the  land, 
but  a  naked  power  of  sale  solely  for  the  purposes  of  the  will, 
and  the  devisees  take  title  to  the  land  with  the  right  of  receiv- 
ing the  rents  and  profits  and  all  other  incidents  of  possession, 
but  subject  to  the  power  of  sale.- 


the  executors  to  sell  the  land  for 
payment  of  legacies  at  any  time. 
Seeger  v.  Leakin,  76  Md.  oOO. 

1  Morse  v.  Bank,  47  N.  J.  Eq.  279, 
20  Atl.  R  961;  Perkins  v.  Presnell, 
99  N.  C.  222,  6  S.  E.  R.  801;  Spruance 
V.  Darlington  (Del  Ch.,  1898).  30  Atl. 
R  663;  Wolflfe  v.  Loeb,  13  S.  R  744, 
98  Ala.  426. 

2  Fatten  V.  Crow,  26  Ala.  (1855),  426; 
Edwards  v.  Bender  (Ala.,  1899),  25  S. 
R  1010;-Clinefelter  v.  Ayers,  16  111. 
(1855),  329;  Thompson  v.  Schenck.  16 
Ind.  194;  AVarfield  v.  English  (Ky., 
1889),  11  S.  W.  R  662;  Bayard  v. 
Rowan,  1  A.  K.  Marsh.  9  (Ky.,  1819), 
214;  Morton  v.  Southgate,  28  Me.  41; 
Inman  v.  Jackson,  4  Me.  237;  Mayo 
V.  :Merritt,  107  Mass.  505,  506;  Fay  v. 
Fay,  1  Cush.  (Ma.ss.)  93;  Homer  v. 
Shelton,  5  Met.  (Mass.)  462.  465;  Pet- 
tengell  v,  Boynton,  139  Mass.  244; 
Perrin  v.  Lep|)er,  72  Midi.  454,  -10  N. 
W.  R  8.59;  13attflle  v.  Parks,  2  Mich. 
<1853).  .531.  .534;  Stokes  v.  Stokes.  66 
Mis.s.  4.56,  6  S.  R  1.55;  Snowhill  v. 
Snowhill,  23  N.  J.  Ij.  447;  Narr  v. 
Narr,  41  N.  J.  Eq.  448;  Chasy  v.  (Jow- 
dry.  43  N.  .J.  Eq.  95;  Killam  v.  Allen, 
•Vi  Burb.  (N.  Y.)605;  Jackson  v.  Scliaii- 
»>er,  7  Cow.  (N,  Y.)  1n7,  191;  Bergen 
V.  Ii«Miiiiftt,  1  Cuines'  Ciw.  (N.  Y.)  16; 
CuHjick  V.  Twectdy.  120  N.  Y.  81,  26 
N.  M  R  1033;  Harris  v.  Strodl,  132 
.\.  Y.  392.  30  N.  E.  R  962 :  KorHter  v. 
Winlield,  142  N.  Y.  327,  37  N.  E.  U. 
II;  Clift  V.  M.»s..s.  116  N.  Y.  111.22 
N.  E.   \L  393;  Mut.  I*  I.  Co.  v.  «liii>- 


man,  108  N.  Y.  19;  Perkins  v.  Pres- 
nell, 100  N.  C.  220;  Haskell  v.  House, 
3  Brew.  (S.  C.)  242;  Ferebee  v.  Proc- 
tor, 2  Dev.  &  Bat.  (N.  C.)  439;  Gros- 
venor  v.  Bowen,  15  R  I.  549,  10  Atl. 
R.  589;  Anderson  v.  Butler,  31  S.  C. 
183,  9  S.  E.  R  797;  Atkinson  v.  Bowl- 
ing, 12  S.  E.  R  93,  33  S.  C.  414; 
Hornsby  v.  Davis  (Tenn.,  1896),  36  S. 
W.  R  159;  Beadle  v.  Beadle,  40  Fed. 
R  315:  Doe  v.  Shotter,  8  Adol.  & 
Ellis.  905:  Queen  v.  Wilson,  3  B.  &  S. 
201.  "The  law  is  too  well  settled  for 
controversy  that  real  estate,  unless 
otherwise  disposed  of,  goes  to  the 
heirs  and  not  to  the  executor,and  that 
a  mere  power  given  to  the  executor 
to  sell  real  estate  does  not  give  him 
a  right  to  tlie  possession  of  the  land; 
that  to  entitle  him  to  the  possession 
the  land  or  its  usufruct  must  be  ex- 
pressly, or  l)y  necessary  inqilication, 
given  to  him  by  tiie  will."  By  the 
court,  in  liubottom  v.  Morrow,  24 
Ind.  202,  204.  A  mere  naked  i)<>wer 
of  sjile  given  to  exccutdrs  to  bo  exe- 
cuted if  the  property  cannot  be  sat- 
isfactorily divided  is  totally  extin- 
guished where  tlie  beneficiaries  agree 
to  divide  without  a  sale.  Clia.sy  v. 
(Jowdry,  43  N.  J.  E<i.  9.5,  9  Atl.  R  580. 
The  Now  York  statuto  (I  R  S.  729. 
J5  561)  i)nivi(ling  that  "a  devise  of 
landhloexeculors  or  other  trustees,  to 
l)eHol*l  or  mortgaged,  where  the  triist- 
eesare  imt  also  eni|K)wereil  to  rect<ive 
the  n*nts  anil  prolits,  sliall  v»'st  no 
title  in  the  trustee,  but  the  trust  shall 


Ills  LAW    OF    WILLS.  [§  TSa. 

§  7S3.  The  power  of  an  executor  to  sell  lands. —  An  exec- 
utor has  no  ])ower  to  selL  land  unless  the  power  of  sale  is  con- 
ferred upon  liim  by  express  language  or  by  necessary  implica- 
tion. If  the  testator  has  imposed  duties  upon  his  executor 
which  require,  in  order  that  they  shall  be  properly  executed, 
that  the  executor  shall  sell  the  land,  he  will  take  a  power  of 
sale  by  implication.^  Thus,  wdiere  the  testator  directs  that  a 
devisee's  share  in  land  shall  he, paid  to  him  by  the  executor; - 
or  where  the  testator  directs  that  land  shall  be  distributed 
equally,  and  it  is  incapable  of  exact  partition;^  or  that  land 
shall  be  invested  and  used^  by  the  executor,  he  will  have,  by 
necessary  implication,  a  power  of  sale  over  that  land.  So,  also, 
where  a  sale  of  land  is  expressly  directed,  but  no  one  is  ap- 
pointed in  the  will  to  sell  it,  the  executor  wall  have  a  power  of 
sale  by  implication;'^  but  a  direction  to  "^;«?/"  a  trust  fund  and 
estate  to  the  children  of  persons  who,  under  the  will,  are  to  re- 
ceive the  income  for  their  lives,  does  not  alioays  create  a  power 
of  sale  by  implication.  The  fact  that  a  considerable  portion 
of  the  trust  property  is  personal  may  strengthen  the  presump- 
tion that  no  power  of  sale  over  the  land  comprised  in  the  fund 
^vas  to  be  conferred  upon  the  executors  b3^a  direction  to  "pay" 
trust  property.     And  if  the  land  is  susceptible  of  a  fair  and 

be  valid  as  a  power,  and  the  lands  Ex'rs  v.  Adriance,  44  N.  J.  Eq.  14,  14 

shall  descend  to  tlie  lieirs,  or  j^ass  to  Atl.  R.  Ifi;  Lippencott  v.  Lippencott, 

tlie  devisees  of  the  testator,  subject  19  N.  J.  Eq.  1:21;  Lindsley  v.  O'Reilh', 

to  the  execution  of  tlie  power."   Con-  15  Atl.  R.  379,  50  N.  J.  Eq.  63G;  In  re 

strued  in  Clift  v.  Moses,  23  X.  E.  R.  Spears,  10  Misc.  R.  635,  32  N.  Y.  S. 

393,  116  N.  Y.  144.  819;    ]Meelian  v.   Brennan,   16  App. 

1  Lindsley  v.  O'Reilly,  50  N.  J.  Eq.  Div.  395,  45  N.  Y.  S.  57:  Officer  v. 
636,  15  Atl.  R.  379.  Board  of  Home  Missions,  47  Hun,  352 ; 

2  Terry  v.  Smith,  42  N.  J.  Eq.  504,  Davoue  v.  Fanning,  2  Johns.  Cli.  252, 
8  Atl.  R  886:  Holmes  v.  Tigges,  42  254.  Cf.  Gammon  v.  Gammon,  153 
N.  J.  Eq.  127,  7  Atl.  R.  347.  111.  41,  38  N.  E.  R.  890;  Valentine  v. 

SMims  v.  Delk,  42  S.  C.  195,  20  S.  E.  Wyson,  123  Ind.  47,  23  N.  E.  R.  1076; 

R  91.  Gross  v.  Howard,  52  Me.  192 ;  Richard- 

*  Davenport  v.  Kirkland.  156  111.  son  v.  Woodbury,  43  I\Ie.  206;  Uni- 

169,  40  N.  E.  R  304;    Crawford  v.  versity  v.  Middleton,  75  Md.  186:  Roe 

Wearn.  115  N.  C.  540,  20  S.  E.  R.  724.  v.  Vingut,  117  N.  Y.  204;  McMillan 

5 Hamilton  v.  Hamilton,  98  111.  254;  v.  William  Deering  Co.,  129  Ind.  70, 

Hanson   v.    Brewer,   78    Me.    195,   3  38  N.  E.  R  398:  Griffin  v.  Griffin,  141 

AtL  R  574;  Jones  v.  Atchison,  etc.  111.  373,  31  N.  E.  R.  131;  Arrotfs  Es- 

Co.,  150  Mass.  304,  23  N.  E.  R  43;  tate,  9  Pa.  Co.  Ct.  R  535;   Whitte- 

Hale  V.  Hale,  137  Mass.  168, 170;  Les-  more  v.  Russell,  80  Me.  297. 
ser  V.  Lesser,  32  N.  Y.  S.  167;  Potter's 


§783.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  1119 

convenient  partition  among  beneficiaries,  no  power  of  sale  is 
to  be  implied  in  trustees  or  executors  from  a  direction  to  "  pay" 
or  "  divide  "  it.^ 

The  power  of  sale  in  the  executor,  whether  express  or  im- 
plied, will  be  strictly  construed.  The  presumption  is  that  a 
power  of  sale,  though  for  the  purpose  of  paying  debts,  does  not 
ordinarily  include  the  i)ower  to  mortgage,-  or  to  lease,  though 
for  a  very  long  terra ;  ^  to  build ;  *  to  barter  lands ;  ^  or  to  divide 
the  lands  among  the  heirs  by  a  friendly  partition.®  "Where  it 
clearly  appears  that  the  purpose  of  the  power  of  sale  was  to  pay 
debts,  or  to  remove  prior  mortgages  on  the  land,  a  power  to 
mortgage  Avill  be  implied.''  Where  a  trustee  of  property  was 
authorized  to  take  up  two  mortgages,  foreclosure  of  which  was 
threatened,  and  to  hold  the  property  until  a  favorable  time  for 
its  sale,  and  an  advantageous  sale  was  not  possible,  he  had  im- 
plied power  to  mortgage  the  property  to  pay  the  two  mortgages.^ 


1  Potter  T.  Ranlett,  74  N.  W.  R.  6G1 
Olich.,  1898). 

2-t  Kent,  Com.,  p.  331;  Leavitt  v. 
Pell,  25  K  Y.  474:  Arlin-toa  State 
Bank  v.  Paulsen  (Xeb..  18'J9),  78  N.  W. 
R  303;  Smith  v.  Hutchinson,  108  III 
662;  Deeiy  v.  Hamilton,  41  Iowa,  10, 
17:  Iowa  Loan  Co.  v.  Holdei'baum, 
86  Iowa,  1;  Wood  v.  Goodridge,  0 
Cash.  (Mass.)  117. 123;  Hoyt  v.  Jaques, 
129  Mass.  157,  158;  Arnoux  v.  Pliyfe, 
6  A  pp.  D.  G05,  39  N.  Y.  S.  973;  Greene 
V.  Greene  (R  I..  1897),  35  .\tl.  R  1042; 
Allen  V.  Uiiddall.  29  S.  E.  R  198; 
Willis  V.  Smith,  W  Te.x.  51,  17  S.  W. 
R247;  Green  v,  Claiborne  (Va.,  1896), 
5  S.  E.  R  37(5. 

»In  re  Freeman,  37  Atl.  R  591,  181 
Pa.  St.  405,  408. 

*  Ilose  V.  Itoae,  6  Dem.  Sur.  (X.  Y.) 
26. 

•Columbus  V.  ITnmpliri<'S,  01  Miss. 
582,  1  S.  R  232;  Lilley  v.  I'rovidcnco 
Co.,  10  R  I.  215,  14  Atl.  IL  915. 

•Hraunsdorf  v.  JirauuHdorf,  23  N. 
Y.  S.  722. 

'  Arliii;^!""  Uaiik  v.  Paulwfn  (Neb., 
1890).  78  N.  \V.  R  :i03;  Hoyt  v.  .JiupieH, 
129  M11.HH.  2H(\,  287,  1  Am.  Pro.  R  151); 
Inman   v.  Cruwford,  89   l'"'"l.  I'   "-'": 


Ball  V.  Harris.  4  My.  &  Cr.  204;  De- 
va3-nes  v.  Robinson,  24  Beav.  86; 
Page  V.  Cooper,  10  Beav.  390:  Strong- 
hill  -»  Anstey,  1  De  Ge.v  &  G.  035; 
Haldenby  v.  SpolTortii.  1  Beav.  390. 
Cf.  Rogers  v.  Rogers,  111  N.  Y.  228,  18 
N.  E.  R  030.  A  testator  gave  his 
real  and  personal  property  to  trustees 
on  trust  for  sale,  with  a  discretion  as 
to  the  postponement  of  any  such 
sale,  and  then  empowered  his  trust- 
ees, during  postponi'ment,  to  manago 
or  cultivate  his  real  and  leasehold 
estates,  and  to  make  any  outlay  tliey 
considered  proper  out  of  the  income 
or  capital  of  his  real  or  personal  es- 
tate, for  the  renewals  of  leases,  etc., 
improvements,  repairs,  or  otherwise 
for  the  benelit  of  his  real  or  |)er.sonal 
estJite.  The  will  contained  no  ox- 
|)ress  power  fortlie  trustees  to  mort- 
gage. Held,  that  tiie  trustees  had 
]M)wer  to  raise  money  for  the  pur|>oses 
Kpecilied  by  mortgage  or  charge  of 
tlie  unsold  real  estate.  In  re  itellin- 
gi-r.  07  Law  .J.  Cli.  5S().  2  Cli.  531,  79 
J>aw  T.  (N.  S.)  51;  lluivll  v.  nclliiiger. 
Id. 

"Gilbert  V.  Penllold,  56  I'ac  R.  1 107 
(Cu!.,  1899> 


1120  LAW    OF    WILLS.  [§  7S3. 

So  a  general  power  conferred  on  the  executor  to  sell  land  as 
the  "  proper  and  convenient  settlement  of  the  estate  may  re- 
quire "  does  not  authorize  a  sale  of  the  hind  which  composes 
the  bulk  of  the  testator's  estate  merely  to  facilitate  division 
among-  the  devisees,  but  the  power  of  sale  can  only  be  exer- 
cised to  raise  money  to  pay  debts,  legacies  and  administration 
charges,  where  the  personal  property  proves  insufficient  for 
the  purpose.^  If  the  power  of  sale  conferred  on  an  executor 
expressly  refers  to  "  all  the  land  or  real  estate  of  the  testator ^"^ 
the  executor  may  sell  all  land,  wiiether  it  is  devised  by  the 
will  or  not.-  A  power  of  sale  conferred  upon  the  executor 
*'  to  sell  any  or  all  the  land  "  of  the  testator  authorizes  a  sale 
of  a  particular  parcel  of  land,  if  the  sale  becomes  necessary, 
although  the  testator  has,  in  a  sul)sequent  clause  of  the  Avill, 
directed  it  to  be  set  apart  and  used  for  charitable  purposes.^ 

And  the  fact  that  an  executor  to  whom  a  power  of  sale  over  all 
the  land  of  the  testator  is  given  is  himself  a  devisee  in  absolute 
terms  of  a  portion  of  the  land  is  not  material  to  prevent  him 
from  exercising  his  power  of  sale  as  an  executor  to  dispose  of 
land  to  Avhich  he  has  an  absolute  title  in  fee  simple.  But  the 
power  of  sale  which  he  has  as  an  executor  does  not  cut  down 
his  absolute  title  in  fee,  and  if  it  is  not  exercised  for  the  pur- 
poses required  it  will  be  extinguished.  Independently  of  stat- 
ute, full  power  to  sell  or  otherwise  alien  "as  fully  as  the  tes- 
tator would  if  living"  may  be  validly  executed  though  no 
license  has  been  obtained  from  the  court.*    But  where  no  ex- 

1  Allen  V.  Dean,  148  Mass.  591,  20  IG  R.  I.  98,  18  AtL  R.  198;  Anderson 
N.  E.  R.  314.  V.  Butler,  31  S.  C.  183,  9  S.  E.  R.  797. 

2  Hale  V.  Hale.  123  111.  399,  17  N.  E.  An  executor,  in  whose  discretion  the 
R.  470;  Petit  v.  Railroad  Co.  (Midi.,  mode  of  selling  is  placed,  may  sell 
1897),  72  N.  W.  R.  238;  Ness  v.  David-  either  by  public  or  private  sale, 
son,  45  ]Minn.  424,  48  N.  W.  R.  10;  Wood  v.  Hammond,  IG  R.  I.  98,  18 
Brown  v.  Brown,  106  N.  C.  451,  11  Atl.  R.  198. 

S.  E.  R.  647;  Saunders  v.  Saunders,        3  In  re  Rogers'  Estate,  172  Pa.  St. 

108  N.  C.  327,  12  S.  E.  R.  909;  Epley  428,  435,  39  Atl.  R.  1109. 
V.  Epley,  16S.  E.R321,111  N.  C.  505;        ^Woolworth  v.  Root.   40  Fed.  R. 

Knapp  V.  Knapp,  46  Hun,  190;  Pol-  723;  De  Zeranikov  v.  Burnett  (Tex. 

lock  V.  Hooley,  22  N.  Y.  S.  215,  67  Civ.  App.,  1897),  31  S.  W.  R.  71;  Iq  re 

Hun,  370;  Cruikshank  v.  Parker,  51  Williams,  92  Cal.  183,  28  Pac.  R.  227; 

N.  J.  Eq.  21,  26  AtL  R  925;  Adam's  Allen  v.  Barnes,  5  Utah,  100,  12  Pac. 

Estate,  148  Pa.  St.  394,  23  Atl.  R.  1072,  R.  912;  Schroeder  v.  Wilcox  (Neb.), 

30  W.  N.  C.  32;  O'Rourke  v.  Sherwin,  57  N.  W.  R.  1031;  Smith  v.  Swan,  3 

15G  Pa.  St.  285;  Wood  v.  Hammond,  Tex.  Civ.  App.  563,  22  S.  W.  R.  247. 


§  784:.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  1121 

press  power  of  sale  is  given,^  or  where  the  power  of  sale  is  to 
be  exercised  for  a  special  purpose,  or  in  a  special  manner  not 
exjyrcssJij  autlwrlzed  hy  the  will,  the  permission  of,  or  confirma- 
tion by,  the  court  is  always  desirable,  if  not  indispensable.'^ 
Thus,  though  lands  are  liable  for  the  debts  of  the  testator,  the 
executor  is  not  able  to  sell  them  if  not  expressly  empowered 
to  do  so  by  the  will,  unless  with  the  permission  of  a  court  of 
probate.'  If  the  statute  requires  that  the  sale  shall  be  con- 
firmed by  the  court  of  probate,  a  good  title  cannot  be  given 
until  a  decree  is  obtained  confirming  the  sale.* 

§  784.  The  execution  of  a  power  of  sale  by  surviving  exec- 
utors.—  A  power  of  sale  to  several  executors  is  a  joint  power, 
and  independently  of  statute  the  joint  power  can  only  be  exer- 
cised by  all  on  whom  it  is  conferred.'  By  statute  21  Henry 
Till.,  chapter  4,  which  is  incorporated  by  implication,  or  has 
been  expressly  re-enacted  in  almost  every  state  of  the  Union,  a 
power  of  sale  which  is  given  to  several  executors,  all  of  whom 
do  not  jijualify,  may  now  be  executed  by  those  who  do  qualify.^ 
So  where  a  power  of  sale  or  any  other  power,  whether  it  be  a 
power  appurtenant  or  collateral,  is  conferred  upon  two  or  more 
executors,  and  some  renounce  or  fail  to  qualify,  those  who  do 
qualify  may  execute  the  power.'  The  execution  of  the  power 
will  be  valid  both  at  law  and  in  equity  whether  the  executors 
or  trustees  were  expressly  appointed  as  tenants  in  common  or 
as  joint  tenants.^    AVhere  the  power  is  given  to  several  exec- 

J  Stevens  v.  Burgess,  61  Ma  89,  97.  conditions  prescrilted  to  exist  Beers 

2  Wood  V.  Hainniond.  16  R.  I.  98;  v.  Narratnore,  61  Conn.  i;j,  23  Atl.  R. 

Pennsylvania  Co.  v.  Bauerle,  143  Pa.  1061. 

8t  459,  33  N.  E.  R  166;  In  re  Bag-  *  Dyer,  219o;  Cro.  Car.  382(t. 

gers  E.state,78  Iowa,  171,42  N.  W.  «  Co.  Lit.    1126,  113a.  1816;   Shep- 

R.  639;  Bates  v.  Leonard,  99   Midi,  jianl's  Touch.,  p.  429,  pL  9;  Dyor.  177; 

296.  r,8  N.  W.  R.  311.  4  Kent,  p.  319. 

'Gibson  V.  Farley.  16  Mass.  2H0,  284.  ^  By  the  terms  of  a  will  the  wliolo 

*C{irt«r  V.  "Van  Bokkelen,  20  Atl.  estate    was   to   "he   ajipraised    and 

R.  781,  73  M(L  n.!.     See  also  Seeger  divided,  hy  my  exi'<-utors  hereinafter 

V.  L<jakin,  76  Md.  .W),  2')  Atl.  R.  862.  named,  inl«»  tworcjual  shares."  lldd. 

Under  a  provision  "  that  my  triLsteo  to  create   a  jtower  coupled    with   a 

Hlmll  liave  |Kjwi;r  from  time  to  time,  trust,  and  to  he  executed  iiy  thecxcc- 

when  it  shall  h«j  <hM'med  for  the  Im-sI  utors  virliitv  ojjicii,  and  that  an   a|>- 

intercst  of  m_v  estate,  to  k<'11  any  jmrt  pniisement  and  division  hy  the  «tnly 

thereof  for   the    improvement  and  «'xecutor  who  (pi.-ililied  wito  valid, 

benofitof  the  remainder."  tlietrust«'e  Smith  v.  \Vinn  (.S.  C),  4  S.  K.  R.  210. 

may  exerciw!  the  |»ow«'r<»f  siile  when-  "  Wardwell  v.  M«'I)owcll.3l  111.3(54; 

ever,  in  his  discretion,  ho  finds  the  Warden  v.  Richard,  11  (iray  (.Ma^s.;, 
71 


lll'li 


I. AW    OF    WILLS. 


[§  TS4. 


utors  and  all  q^'ol'fi/,  tlio  power  may  be  executotl  by  the  sur- 
yivoi's  after  the  death  of  one  or  more.'  And  this  is  a  fortiori 
the  case  where  tJie  testator  has  expressly  provided  that  a  power 
shall  be  executed  by  his  executors  or  trustees  and  hy  the  survivor 
or  survivors  of  them?  Where  a  testator  gives  lands  to  one 
trustee  named,  with  discretionary  power  of  sale  to  "  executors, 
.  .  .  or  the  survivor  of  them,  as  executors  or  trustees,"  con- 
fiding in  the  discretion  of  said  "  executors  and  trustees,"  the 
power  is  annexed  to  the  olfice,  and  not  to  the  person  named  as 
trustee,  and  his  successor  has  the  power  to  convey.'  But  where 
a  power  has  been  conferred  by  the  testator  upon  several  exec- 
utors or  trustees  jointly,  and  all  are  alive  and  have  accepted 
the  office,  the  instrument  purporting  to  execute  the  power  must 
be  executed  by  all  of  them.*  Where  the  power  of  sale  is  ex- 
pressly conferred  upon  the  majority  of  the  executors  named  in 
the  will,  an  execution  by  one  executor  is  invalid,'^  unless  the  sale 


277;  Chandler  v.  Rider,  102  Mass.  268, 
271;  Putuaiu  v.  Fisher,  36  Me.  523; 
Vernor  v.  Coville.  54  Mich.  283; 
Herick  v.  Carpenter,  92  ]\[icli.  440,  52 
N.  W.  R.  747;  Lippencott  v.  Wilioff 
(N.  J.  Eq.,  1890),  33  Atl.  R.  305,  307; 
Weimar  v.  Fath,  43  X.  J.  Law,  1; 
Denton  v.  Clark,  36  N.  J.  Eq.  534: 
Hyatt  V.  Aguero,  1  N.  Y.  S.  339;  Jack- 
son V.  Ferris,  15  Johns.  (N.  Y.)  347; 
Taylor  v.  :Morris,  1  N.  Y.  341 ;  Niles  v. 
Stevens,  4  Denio  (N.  Y.).  402;  Zebach 
V.  Smith.  3  Binn.  (Pa.)  69;  In  re 
Bailey,  15  R.  I.  60,  1  Atl.  R.  131;  De 
Saussure  v.  Lyon,  9  Ricli.  (S.  C.)  Eq. 
492;  Smith  v.  Winn,  27  S.  C.  591,  4  S. 
E.  R  240;  McCown  v.  Terrell  (Tex., 
1898),  40  S.  W.  R.  54;  Melms  v.  Pfister, 
59  Wis.  186.  189;  Adams  v.  Taunton, 
5  Madd.  435;  Forbes  v.  Peacock,  11 
M.  &  W.  6*;  Peter  v.  Beverly,  10 
Peters  (U.  S.),  532,  564. 

1  Security  v.  Cone,  64  Conn.  579,  31 
Atl.  R.  7;  Wolfe  v.  Hines,  93  Ga.  329, 
20  S.  E.  R.  322;  Gut  man  v.  Buckler, 
69  Md.  7;  Poole  v.  Anderson,  80  Md. 
454:  Parkers  v.  Sears,  117  Mass.  513, 
521;  Gould  v.  Mather,  104  Mass.  283, 
290;  Carroll  v.  Conley.  56  Hun.  649; 
Cowles  V.  Reavis.  109  N.  C.  417;  Bred- 
enbergh  v.  Barden,  36  S.  C.  197,  15 


S.  E.  R.  372;  Chapman  v.  Connell,  30 
S.  C.  549;  McDonald  v.  Hamblen,  78 
Tex.  628,  14  S.  W.  R.  1042. 

^  Safe  Dep.  &  Trust  Co.  of  Baltimore 
v.  Sutro,  75  Md.  361,  23  Atl.  R.  732; 
Boutelle  v.  Savings  Bank,  17  R.  L 
781,  24  Atl.  R.  838;  Freeman  v.  Pren- 
dergast,  94  Ga.  869;  Bradford  v. 
Monks,  132  IMass.  405,  407.  It  is  al- 
ways necessary,  in  order  that  the 
grantee  shall  have  notice,  that  the 
death  of  the  executor  or  of  the  trus- 
tee shall  be  recited  in  the  deed  exe- 
cuting the  power. 

3  Boutelle  v.  City  Sav.  Bank,  24  Atl. 
R.  838,  17  R.  L  781. 

^Shaw  V.  Canfield.  86  Mich.  1; 
Pennsylvania  Co.  v.  Bauerle,  143  111. 
459,  33  N.  E.  R.  166:  Wright  v.  Dunn, 
73  Tex.  293.  11  S.  W.  R.  330.  A  stat- 
ute providing  that,  in  construing 
law-s,  words  pvirporting  to  give  a 
joint  authority  to  tlu-ee  or  more 
public  officers  or  persons  confer  tlie 
power  on  a  majority,  unless  otlier- 
wise  provided,  does  not  apply  to  sucli 
a  case.  Crowley  v.  Hicks,  72  Wis. 
539,  545,  40  N.  W.  R.  151. 

5  Dodge  V.  TuUoch  (Mich.,  1897),  68 
N.  W.  R.  239. 


§  TS4] 


TESTAMENTARY    USES,  TRUST    ESTATES,  ETC. 


1123 


be  subsequently  ratified  by  the  other  executors.*  The  English 
rule  is  that  where  a  power  is  given  to  two  or  more  persons 
oiominatim,  whether  individually  or  as  executors,  it  does  not 
survive  without  express  words  to  that  effect;  but  where  it  is 
conferred  on  several  executors  or  trustees  as  a  plural  body,  as 
to  "  mv  executors,"  or  "  mv  trustees,"  it  will  survive  so  Ions:  as 
two  or  more  executors  or  trustees  survive.^  AVliere  a  power  of 
sale  is  exjv'essly  limited  to  the  acting  trustees  and  to  the  sur- 
vivor and  to  those  who  may  succeed  to  the  trust,  a  deed  is  in- 
valid which  is  executed  b v  the  survivor,  no  trustees  havino-  been 
appointed  in  the  place  of  those  who  had  died.^ 

A  mandatory  power  of  sale,  or  any  other  power  which  is  to 
be  exercised  ratione  officii  by  a  single  executor,  and  he  dies  or 
resigns  before  the  execution,  may  usually  be  exercised  by  the 
administrator  with  the  will  annexed,  under  an  order  of  the 
court.*. 

Jjut  where  tlie  power  conferred  upon  the  executor  is  a  per- 
sonal, confidential  or  discretionary  power  and  not  ratione  officii^ 
it  cannot,  after  the  death  of  the  executor,  be  exercised  by  the 
administrator  with  the  will  annexed.'^     This  would  be  the  case 


•  Dunn  V.  Renick.  80  MJ.  4.J4,  22  S. 
E.  R.  GO. 

-Sug'Jen  on  Powers.  .^  1">9.  The 
lK)\ver  of  the  testator  to  direct  that 
a  ix)\ver  of  sale  or  other  jwwer  sliall 
be  e.xerciseJ  jointly  and  not  Hi'vcvalbj, 
or  to  reijuire  that  all  the  executors 
aiijtointeil  by  him  shall  join  in  its 
execution,  with  the  alternative  that 
it  shall  expire  ami  be  void  in  case 
any  one  of  two  or  UKjre  persons  wlio 
are  to  execute  it  sliall  <lie  before  its 
execution,  is  of  course  uiidisi)uted. 
See  Herriot  v.  Prime,  :j:{  N.  Y.  S.  iJTt), 
Hi  Hun,  MTt. 

'Correll  v.  Lauterbat-h,  11  Misc.  K. 
40'J.  m  N,  Y.  Sui)p.  «1"). 

M'enn  v.  Kol«.-r.  77  III.  A  pp.  :{«:.; 
Dfivis  v.  Hoovi-r.  112  Ind.  42;}.  11  N. 
E.  \L  KW:  (iriKk'H  v.  V.-tchtf-.  J7  N.  .1. 
Va{.  170.  lU-Ml.  K.  N«J7;  J..r<.l<'maii  v. 
Van  Ri|K'r,  11  N.  J.  Va\.  '2',f,)\  Drum- 
mond  V,  Jones,  44  N.  J.  E<|.  ■*):); 
S^linx-d.-r  v.  Wilfox  (N.-b..  \m:t  .  .'.7 
N.  W.  \L   lO.Jl:   (Jr.'.-nliin.l   v.  Wad- 


dell,  110  N.  \'.  234;  Meehau  v.  Bren- 
nan,  4.j  N.  Y'.  S.  57;  Cohea  v.  John- 
sou.  09  Miss.  40,  13  S.  R.  40;  Robinson 
V.  Ostendorff,  38  S.  C.  00,  10  S.  E.  R. 
371;  Lahey  v.  KoitriKht,  132  N.  Y\ 
4.J0,  30  N.  E.  R.  980;  Venable  v.  Merc. 
TrvLst  &  DeiKisit  Co.,  74  Md.  187,  21 
All.  R  704;  Putnam  v.  Story,  132 
Mass.  205.  213;  Cliandler  v.  Rider,  102 
Mass.  208,  271;  Blake  v.  Dexter,  12 
Cash.  (Mass.)  559;  Lamed  v.  Bridge, 
17  Pick.  (>hiss.)  329. 

*  Lucas  V.  Price,  4  .\la.  097;^ Palmer 
V,  M<K)re,  82  (Jal  177,  8  S.  E.  R.  180; 
O'Brien  v.  Biittlo,  98  tta.  70r,,  25  S.  E. 
R.  7H0;  Nicoll  V.  Scott,  99  III.  259; 
Hodgen  v.  Toler,  70  Iowa,  21,  25; 
Bri)Wii  V.  Ilohsnn,  3  A.  K.  Marsh.  (Ky.) 
3HM;  (;;imlM'l  v.  Trippc,  75  Md.  252. 
2J  Atl.  R.  4«;i;  Wills  v.  Cowper,  2 
Ohio,  121;  ("oiihlin  v.  Kdgerton.  21 
Wend.  (N.  Y.)  430.  25  Wend.  (N.  Y.) 
233;  Ross  v.  Marday,  IH  Pu.  St.  179; 
Mcirdccai  v.  Sciiinm-r,  3H  S.  C.  294,  10 
S.  E   R.  s'^9;   Var<laman    v.   Ross,  30 


1V24: 


LAW    OF    WILLS. 


[§  'i'S^. 


where  the  executor  has  a  discretionary  power  to  distribute  a 
fund  among-  several  persons  in  such  proportions  as  he  may 
see  fit. 

Nor  can  the  donee  of  a  discretionary  power  delegate  his  dis- 
cretion to  another  person.  Thus,  a  trustee  having  a  discretion- 
ary power  of  sale  over  real  property  must  himself  select  the 
time  and  the  mode  of  sale,  and  he  must  also  fix  the  price  which 
he  will  accept.^  But,  having  determined  to  sell  and  having 
fixed  the  price  and  the  terms  of  sale,  it  is  competent  and  proper 
for  him  to  authorize  an  agent  to  contract  for  him  and  to  at- 
tend to  the  delivery  of  the  deed  and  to  other  minor  details.'- 

In  conclusion,  it  must  be  said  the  power  of  an  executor  or  of  a 
trustee  to  sell  lands  will  not  endure  beyond  the  period  in  which 
the  proceeds  of  the  sale  are  to  be  applied  by  him.  Thus,  where 
an  executor  is  empowered  to  sell  land  and  apply  the  money  re- 
ceived to  A.'s  support  during  her  life,  or  until  her  attainment  of 
majority,  the  executor's  power  of  sale  expires  with  the  life  or  the 
majorit}^  of  A.'     But  an  absolute  and  independent  power  con- 


Tex.  Ill:  Hayes  v.  Pratt,  147  U.  S. 
557.  13  Sup.  Ct.  R.  503;  Ingle  v.  Jones, 
9  Wall.  (U.  S.)  486,  498.  The  diffi- 
culty in  these  cases  is  to  determine 
whether  the  power  in  the  trustee  or 
executor  is  given  ratione  officii,  or 
whether  it  is  given  to  him  as  an  in- 
dividual. The  leaning  of  the  courts 
is  to  construe  all  powers  vested  in  a 
trustee  or  executor  as  given  by  rea- 
son of  the  office  or  trust  conferred 
upon  him.  Thus  a  power  to  deter- 
mine whether  a  legatee  was  making 
a  proper  use  of  "  his  money,"  and  to 
withhold  its  payment,  if,  in  the  opin- 
ion of  the  executor,  he  was  misapply- 
ing the  same,  has  been  held  to  be 
given  ratione  officii,  and  it  is  capable 
of  being  exercised  by  the  court  where 
the  executor  appointed  died  before 
executing  the  power.  Pedrick  v. 
Pedrick,  50  N.  J.  Eq.  479,  26  Atl.  R. 
267,  affirming  21  Atl.  R.  946.  A  will 
devised  property  to  the  testator's  ex- 
ecutors for  a  daughter  during  life, 
and  provided  that  if  the  daughter 
married  a  discreet  and  prudent  man. 


and  the  executors  or  executor  should, 
be  satisfied  of  the  existence  of  such 
traits  in  the  husband  and  should 
first  give  her  a  written  testimonial 
to  that  effect,  she  should  take  the 
property  in  fee.  Held,  that  the  giv- 
ing of  the  testimonial  was  not  con- 
fined to  all  the  executors,  but  the 
survivor  might  give  it.  Viele  v. 
Keeler,  29  N.  E.  R  78.  129  N.  Y.  190. 

1  Keim  v.  Lindley  (N.  J.,  1888),  30 
Atl.  R.  1063;  Whitlock  v.  Washburn, 
17  N.  Y.  S.  60,  62  Hun,  369;  Smith  v. 
Swan,  2  Tex.  Civ.  App.  453,  22  S.  W. 
R.  247;  Roberts  v.  Roberts,  71  Md.  1, 
17  Atl.  R  568;  Reeves  v.  Bray  ton.  36 
S.  C.  384,  39.5-397,  15  S.  E.  R  658. 

-'  Keim  v.  Lindley  (N.  J.,  1888),  30 
Atl.  R.  1063;  Smith  v.  Swan,  2  Tex. 
Civ.  App.  453,  22  S.  W.  R  247. 

3  Harmon  v.  Smith.  38  Fed.  R  483; 
Parrott  v.  Dyer  (Ga.,  1898),  31  S.  E.  R 
417;  Fidler  v.  Lash,  125  Pa.  St.  87,  17 
Atl.  R  240,  23  W.  N.  C.  449,  where 
the  proceeds  of  the  sale  were  to  be 
put  at  interest  and  the  income  paid 
to  the  widow  of  the  testator  for  life. 


§  785.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  1125 

ferred  upon  the  executors  to  sell  all  or  an}'  of  the  testator's  real 
estate  at  such  times  and  in  such  manner  as,  in  their  judgment, 
thej  shall  consider  best  for  the  interest  of  the  estate,  and  to 
execute  deeds  therefor,  is  valid  and  continues,  though  trusts 
created  by  the  will  in  no  way  connected  therewith  are  declared 
void.^ 

§  785.  The  acceptance  of  the  trust. —  The  testator  cannot, 
by  designating  a  person  as  trustee,  compel  him  to  serve  as  such. 
The  person  named  must  either  expressly  accept  the  trust  or  he 
must  interfere  with  the  control  of  the  trust  property  in  such  a 
way  that  not  to  indulge  the  presumption  that  he  has  accepted 
the  trust  would  result  in  injury  to  the  cestui  que  trust.  One 
who  has  been  named  as  a  testamentary  trustee  should,  if  he  do 
not  intend  to  accept,  promptly  renounce  his  appointment."  His 
refusal  to  accept  will  in  no  wise  affect  the  validity  of  the  trust. 
He  may  resign  the  trust  after  he  has  entered  upon  the  per- 
formance of  the  duties  attached  to  it;  and,  if  he  has  not  been 
guilty  of  malfeasance,  and  on  his  accounts  being  correctly  ren- 
dered, his  resignation  will  be  accepted  by  the  court  of  probate 
or  a  court  of  equity  and  a  new  trustee  will  be  appointed  in  his 
place. 

But  so  long  as  the  relation  of  trustee  and  beneficiary  exists, 
no  mere  hipse  of  time  will  estop  the  beneficiary  from  enforc- 
ing his  rights  to  and  in  the  trust  property  against  the  trustee. 
If  the  trustee  has  openly  repudiated  the  trust,  so  that  a  knowl- 
edge of  his  repudiation  has  come  home  to  the  beneficiary  in 
such  a  manner  as  to  require  the  beneficiary  to  take  immediate 
action,  and  he  has  not  acted ;  or  if  other  circumstances,  aside 
from  mere  lapse  of  time,  are  shown,  from  which  an  extinguish- 
ment of  the  trust  may  be  inferred,  the  cestui  que  trust  is  barred 
to  assert  the  relationship.^ 

iLindo  V.  ]\Iurray  (N.  Y..  1899),  51  (N.  Y.)  Ch.  89;  Robinson  v.  Hook.  4 

N.  E.  R.  1091.  afliriiiing  91  Ilun,  W-Vi,  Mason,  C.  C.  139;  Baker  v.  WliitinR. 

30  N.  Y.  S.  2:J1.  3  Sunin.  C.  C.  475;  Boone  v.  CliiMs. 

^Saunders  v.  Riclianl.  .'{.")  Fla.  28,  10  Pt'tcrs  (U.  S.).  177.  22;J.    Whoro  A. 

10  S.  R.  079;  Salter  v.  Salter,  80  (ia.  is  apjxMntetl  trustee  of  two  separate 

178,  4  S.  E.  R.  ;j9;  Barclay  v.  (jooilloe,  trusts,  he  may  aceept  the  one  anil 

83  Ky.  493.  reiiounri!  tlu'  other.    Carrulh  v.  Car- 

'  Anderson  V.  North roj),  30  Fla.  or.',  ruth,  148  Mas.s.   431.   19  S.   K  R.  309. 

12  S.  R.  318;  Kiiton  v,  Kuton,  20  Mo.  A  trustee  is  estopped  from  <lonying 

030;    Kuno   v.    Blo<jdgood,   7  .Jr)hn.s.  the  title  or  estate  of  tlie  person  for 


1120  LAW   OF   WILLS.  [§  786. 

§  786.  Tlie  power  of  equity  to  appoint  a  new  trustee. —  If 

the  testator,  whether  inadvertently  or  with  deliberation,  shall 
fail  to  appoint  a  trustee,  or  if  the  trustee  he  appoints  prede- 
ceases him,'  or  in  case  a  trustee  dies  after  he  has  accepted,  but  be- 
fore he  has  performed  a  trust  created  by  the  will,  or  when  the 
trustee  renounces,  or  for  any  reason  is  unable  to  act  as  such, 
equit}^  will  appoint  a  new  trustee  in  his  place.-  In  the  absence 
of  a  statute  enacting  a  contrary  rule,  the  legal  estate  in  a 
trustee,  if  it  is  a  fee,  upon  the  death  of  the  trustee  descends  to 
his  heirs,  though  always  subject  to  the  obligations  of  the  trust, 
the  performance  of  which  the  beneliciary  may  compel  against 
the  heirs  of  a  trustee  to  the  same  extent  as  against  the  ances- 
tor. The  heirs  must  either  perform  the  trust  or  they  must  have 
a  new  trustee  appointed  b_y  the  court,  where  he  is  an  active 
one.^  And  it  has  been  held  in  the  English  courts  of  equity 
from  the  time  of  Lord  Eldon*  that  every  interest  in  trust  to 
which  the  testator  shall  be  entitled,  and  which  he  has  the  power 
to  devise,  will  jxiss  under  a  general  decide,  unless  it  is  to  be  col- 
lected from  the  express  language  of  the  will,  or  from  the  pur- 
poses and  objects  of  the  testator,  that  he  did  not  intend  prop- 
erty held  by  him  in  trust  to  pass.  The  fact  alone  that  there  is 
other  land  to  which  the  general  devise  may  be  applicable  does 
not  exclude  this  rule.'^  But  if  the  trustee  has  devised  to  A.  all 
the  estate  which  "  Jie  Itolds  as  a  trustee^''  a  conclusive  presump- 
tion is  created  that  a  residuary  devise  to  B.  will  not  include 
such  estate.     So,  also,  if  the  real  property,  which  is  included  in 

whose  benefit  it  was  created,  and  for  Henderson,  71  Pa.  St.  368;   Allen  v. 

whose  use  he  holds  it.     Sterling  v.  Baskerville  (N.  C,  1898),  31  S.  E.  R. 

Sterling,  79  N.  W.  R.  (Minn.,  1899),  383;  Evans  v.  Chew,  71  Pa.  St.  47; 

525.  Boone  v.  Cliilds,  10  Peters  (U.  S.),  177, 

1  Woodruff  V.  Woodruff,  44  N.  J.  Eq.  2 1 3. 

79,  16  Atl.  R.  4.  *  Braybrooke  v.  Inskip,  8  Ves.  417. 

-  Tainter  v.  Clarke.  5  Allen  (Mass.),  ^  Littleton's    Case,    2    Vent.    351 : 

66:  In  re  Petrenek's  Estate,  79  Iowa,  Richardson  v.  Woodbury,  43  Me.  206; 

410,44  N.  W.  R.  685;  Slade  v.  Patten,  Abbot's  Case,  55  Me.  580;  Heath  v. 

68  Me.  380,  1  Am.  Pro.  R.  346,  349:  Knapp,  4  Pa.  St.  228:  Hughes  v.  Cald- 

Fisher  V.  Dickenson,  84  Va.  818,  4  S.  E.  well,  11  Leigh  (Va.),  343,  349.     The 

R  737.  early  cases  of  Attorney-General   v. 

3  Gregg  V.  Gabbart  (Ark.,  1897),  37  Butler,  5  Ves.  340,  and  Ex  parte  Bret- 

S.  W.  R.  232;  Russell  v.  Peyton,  4  111.  tell,  6  Ves.  577,  may  be  taken  to  liave 

App.  273;  Clark  v.  Tainter.  7  Cush.  been  overruled  by  Braybrooke  v.  In- 

(Mass.)  567;  Ewing  v.  Shannon.  103  skip,  8  Ves.  417. 
Mo.  188,  20  S.  W.  R.   10G5;   Gray  v. 


§  786.]  TKSTAMEXTARY    L'SES,  TRUST    ESTATES,  ETC.  112T 

the  general  or  residuary  devise,  is  to  be  used  by  the  devisee  in 
a  mode  which  is  incompatible  with  a  trust  estate  in  him,  or  is 
to  be  applied  by  him  to  carry  out  purposes  which  are  contrary 
to  the  directions  for  the  disposition  of  the  property  given  by  the 
creator  of  the  trust,  the  general  rule  will  not  prevail.  Accord- 
ingly, where  the  lands  which  are  comprised  in  the  general  de- 
vise are  charged  with  the  payment  of  the  debts  of  the  testa- 
tor, or  are  directed  by  him  to  be  converted  and  the  proceeds 
paid  out  in  legacies,  the  trust  estate  does  not  pass  by  the  gen- 
eral devise.^  The  same  result  would  follow  Avhen  the  property 
devised,  described  as  in  trust,  was  subjected  to  a  power  of  sale 
by  the  will  for  a  specific  purpose,-  or  was  given  in  trust  for  the 
separate  use  of  a  married  woman.^  The  property  for  which 
the  testator  was  a  trustee  will  not  pass  under  the  general  de- 
vise in  such  a  case,  where  the  intention  of  the  testator  as  to 
its  disposition  by  the  devisee  is  totally  repugnant  to  the  pur- 
poses of  the  trust  estate.  And  where  the  testator  in  disposing 
of  hmd  among  two  or  more  persons  by  a  general  devise  makes 
them  expressly  tenants  in  common,  or  uses  words  requiring  an 
equal  division  or  partition  of  the  property  among  tliem  in 
shares,  it  will  be  conclusively  presumed  he  does  not  mean  to 
pass  any  interest  to  which  he  may  be  entitled  as  a  trustee.^ 

AVhere  a  trust  estate  is  devised  to  A.  and  his  heirs,  all  discre- 
tionary powers,  though  given  in  the  will  to  A.  by  name,  de- 
scend from  him  on  his  death  to  his  heirs  and  may  be  exercised 
by  them,  tlioiiizli  all  the  heirs  of  A.  should  be  appointed  trust- 
ees.* An  inti'Ution  to  pass  the  trust  estate  is  conclusively  shown 
by  a  devise  of  "such  estate  and  inti'nst  as  may  l»e  vested  in 
the  testator  as  a  trustee."  Assuming  that  such  a  devise  is  valid, 
as,  indej)endently  of  statute,  it  would  be,  and  that  the  legal 
title  passes  to  the  devisee  of  the  trustee,  it  would  seem  reason- 
able to  assume  that  the  latter  took  it  with  all  the  powers,  dis- 
creti(jnary  and  ministerial,  of  his  devi.sor.  If  the  creator  of  the 
trust  lias  seen  lit  to  limit  it  to  the  heirs  of  the  oriLjinal  trustee, 
who  ai-e  not  in  liein;:  and  who  ai-e  unknown  to  him,  he  cannot, 

1  |{(H-  .1.  H«-ii(h.  V.  Ri'inU-.  H  Term  l{.  *  Tliirli.'  v.  VaiiKlm.  2  W.  K.  (i:i'.>,  Jt 
IIH;  .Mor;,'!iri,  Kx  piirU-.  10  Vos.  101;  I.iiw  Tiiiifs.  ."i;  .Murliii  v.  Liivciioii, 
IloiM-  V.  I, i. I. tali.  21  liciiv.  1h:{;   Hcllis'     L.  U.  W  K.|.  .'•(i:?. 

TriiHtH,  I..  IJ.  :.  Cti.  I).  r.Ol.  ■' Wiliiiiiiis  V.  .Molii'if,  15  Ati.  li.  M»2, 

2  [n  H'  Marsliull,  USirn.  .Vm.  CO  Vt.  :]?>*. 
»Lin(l84ill  V.  Thjurkcr,  12  Sim.  17s. 


1128  LAW   OF    WILLS.  [§  78G. 

object  if  the  trustee  devises  the  legal  estate,  as  he  has  a  right 
to  do,  to  another  who  is  equally  a  stranger.  But  in  one  well- 
considered  English  case  where  trustees  had  discretionary  pow- 
ers of  distribution  and  appointment  among  the  beneficiaries, 
and  the  survivor  of  them  died,  the  court  held  that  his  devisee 
could  not  exercise  the  discretionary  powers  vested  in  his  devi- 
sor.^ The  distinction  is  apparent  between  a  devise  made  under 
such  circumstances,  and  a  devise  of  a  trust  estate,  where  the 
powers  which  attach  to  the  trust  do  not  call  for  the  exercise  of 
any  discretion  in  a  trustee,  and  may  be  performed  by  one  per- 
son as  well  as  by  another.  Even  in  the  case  of  a  trust  for  sale 
or  a  power  of  sale  created  in  A.  and  his  heirs,  or  in  A.  and  B., 
or  the  survivor  or  the  heirs  of  such  survivor,  where  the  direc- 
tion to  sell  is  mandatory,  a  sale  being  required  to  be  made  with 
all  convenient  dispatch,  and  the  only  discretion  being  a  limited 
one  as  to  time  and  mode  of  sale,  it  seems  that  the  devisee  of 
either  trustee  cannot  exercise  the  power  of  sale  any  more  than 
could  an  assignee  of  either  trustee.^  The  creator  of  the  trust 
liaving  selected  a  particular  person  or  class  of  persons  to  exe- 
cute the  power,  its  execution  by  another  is  invalid  under  the 
rule  that  the  donee  of  a  power  cannot  delegate  its  exercise  to 
another.  But,  on  the  other  hand,  in  case  the  devise  in  trust 
is  not  to  A.  and  his  heirs,  but  to  A.,  his  heirs  and  assi(/ns,  the 
devisee  of  the  trustee  may  execute  the  power  of  sale  or  other 
discretionary  power.  The  distinction  arises  from  the  use  of  the 
word  assigns  in  the  words  of  creation  of  the  trust.  This  word 
is  presumed  to  include  a  devisee,  to  whom,  therefore,  the  trust 
property  devised  passes  under  the  terms  of  the  original  trust 
and  subject  to  it.'    A  devise  of  a  trust  estate,  by  a  trustee  tak- 

1  Cole  V.  "VVade.  13  Sim.  91.  test  against  the  proposition,  which 

'-Cooke  V.   Crawford,   18  Sim.  91;  was  stated  in  the  course  of  tlie  argu- 

Bradford  v.  Belfield,  2  Sim.  264;  Ste-  ment,  that  it  is  a  beneficial  thing  for 

vens  V.  Austen.  30  L.  J.  Q.  B.  212.  a  trustee  to  devise  an  estate  whicli  is 

3Titley  v.  Wostenholme,  7  Beav.  vested  in  him  in  that  character.   My 

425;  Mortimer  v.  Ireland,  6  Hare,  196;  opinion  is  that  it  is  not  beneficial  to 

Ockleston  v.  Heap,  1  De  Gex  &  M.  the  testator's  estate  that  he  should  be 

640.     "  It  is  plain  that  when  C,  who  allowed  to  dispose  of  it  to  whomso- 

was  the  sole  trustee  of  the  legal  es-  ever  he  may  think  proper;  nor  is  it 

tate  in  fee,  saw  fit  to  devise  the  legal  lawful  for  him  to  make  any  disposi- 

estate  that  was  vested  in  him,  lie  did  tion  of  it.     He  ought  to  permit  it  to 

an  act  which  he  was  not  authorized  descend;  for  in  so  doing  he  acts  in 

to  do.    And  here  I  must  enter  a  pro-  accordance  with  the  devise  made  to 


§  786.]  TESTAMENTARY    USES,  TRUST   ESTATES,  ETC.  1129 

ing  under  a  trust,  to  the  trustee,  his  executors  and  administrator, 
does  not  pass  the  trusteeship  to  the  devisee,  for  he  cannot  claim, 
under  the  limitations  of  tlie  trust.^  In  all  the  cases  where  the 
trustee  has  devised  or  bequeathed  the  trust  property'  to  persons 
not  mentioned  in  the  creation  of  the  trust  to  succeed  him,  the 
devise,  though  valid  to  convey  the  legal  interest,  does  not  oper- 
ate as  a  transfer  of  the  office  of  trustee  nor  as  a  delegation  of 
any  of  the  powers  conferred  upon  the  first  trustee.  The  court 
of  equity  will  appoint  a  new  trustee  and  decree  that  the  devisee 
shall  convey  to  him,  and  direct  an  execution  of  the  powers  in 
question  so  far  as  possible  in  accordance  with  the  intention  of 
the  original  trust  arrangement. 

In  Xew  York  state  and  perhaps  in  some  other  states  by  stat- 
ute it  is  provided  that,  upon  the  death  or  the  insolvency  or  the 
renunciation  of  the  trustee,  the  estate  shall  vest  in  the  supreme 
court,  which  has  then  jurisdiction  to  appoint  a  new  trustee.' 
In  those  states  the  devisee  of  a  trustee  need  not  convey  to  a 
beneficiary.'  The  trustee  appointed  by  the  court  succeeds  to 
all  the  rights  and  ])owers  of  the  original  trustee,*  unless  the 
power  is  discretionary  and  involves  a  personal  confidence  re- 
posed in  the  former  trustee.  If  powers  are  given  to  the  trustees 
ratione  officii,  as  to  the  trustees  generally,  they  may  be  exercised 
by  a  new  trustee  appointed  by  the  court  or  by  the  survivors  of 
several  trustees. 

Thus,  where  a  power  of  sale  is  vested  in  a  trustee,  and  he  has 
an  unlimited  discretion,  personal  to  himself,  wiiether  he  shall 
exercise  the  power  of  sale  at  all,  a  new  trustee  cannot  exercise 

liiiii.     If  Iio  devises  the  estate,  I  am  i  Wilson  v.  Bennett,  20  L.  J.  Ch.  379; 

inclined  t<>  think  th;it  tht*  court,  if  it  In  re  Hurtt,  1  Drew.  ;319. 

were  urged  to  do  so,  would  order  tlio  -  Kirk  v.  Kirk,  1:57  N.  Y.  r)10,  'X^  N. 

cost  of  Kitting  the  le;;al  estate  out  E.  R.  ^)')'l;  N.  Y.  Security  &  T.  t'o.  v. 

of  the  devisee  to  be  borne  by  the  es-  Gas  Light  Co.,  51  N.  E.  li.  JU!»2  (N.  Y., 

tate  of  the  trustee.    I  see  no  substan-  1899). 

tial   distinction   Ijetween  a  convey-  'Robinson  v.  Schniitt,  17  App.  Div. 

ance  by  act  inter  viros  and  a  devise;  628,  45  N.  Y.  S.  253. 

for  the  latter  is  nothing  but  a;)o«/.  <  Smith  v.  Hall  (R  I.,  1H9H),  .37  Ati. 

mortnm  conveyance,  and  if  tin?  ono  R.  (S9H;  Wcmyss  v.  Wliite,  .'M  N.  E.  R, 

i.s unlawful  the  other  nnist  be  unlaw-  71H,  159  Mass.  IHl;  Freeman  v.  Pren- 

ful."  liySir  L.  Shadw<di,f<irlher'(jurt  dergast,  91  («a.  3()'.»;  Oslxiriie  v.  (!or- 

in   Cooke   v.   Cniwford.   13   Sim.   91.  don,  8(5  Wi.s.  92,  5(1  N.    W.    R.    331; 

And  s^-o  al.so  Hall  v.  .May,  3  K.  &  .1.  (.'(M>i)er   v.    Illitiois  Cent.    R.   Co.,  38 

585;  Salow.'iy  v.  Struwbridge,  1  K.  &  App.  Div.  22.  57  N.  Y.  925;  Lahey  v. 

J.  37 U  Korl right. 30  N.  E.  lt.9S9, 132  N.  Y.  450. 


1130 


LAW    or   WILLS. 


[§  T8C. 


the  power  giveii.^  But  where  the  power  must  be  executed  by 
a  trustee  in  order  to  carry  out  the  intention  of  the  testator,  a 
different  rule  is  applied.  Where  a  sale  is  imperatively  directed, 
and  the  trustees"*  discretion  is  only  exercised  in  selecting  the 
time  or  manner  of  sale  ("as  w^ienever  and  in  such  manner  as 
they  see  fit ""),  a  duly  towards  others  is  created  that  the  court 
Avill  enforce.  The  new  trustee  will  have  the  rights  and  powers 
of  his  predecessor  whose  place  he  occupies.  Equity  will  not  per- 
mit the  positive  rights  of  the  beneficiary  to  be  prejudiced  be- 
cause of  accident,  or  the  neglect  of  a  trustee.- 


1  Osborne  v.  Gordon,  86  Wis.  9'>.  98; 
and  compare  Cole  v.  Wade,  16  Ves. 
27,  44;  Lewin  on  Trusts,  p.  289.  A 
bequest  in  trust  to  pay  the  income 
of  the  trust  fund  to  the  child  of  the 
testator  during  her  life,  "  and  as 
much  of  the  principal  as  shall  seem 
to  the  trustee  proper  for  her  su]3port 
and  maintenance,"  does  not  create  a 
mere  naked  power  in  the  trustee 
which  he  may  execute  or  not  at  his 
discretion,  but  imposes  an  imperative 
duty  upon  him  to  pay  over  so  much 
of  the  principal  as  may  be  necessary 
for  the  support  of  the  beneficiary. 
Hence  the  trust  may  be  executed  by 
a  trustee  appointed  by  the  court  upon 
the  death  of  the  original  trustee, 
under  R  S.,  §  2094,  which  vests  in 
such  trustee  all  the  powers  and 
duties  of  the  original  trustee.  Os- 
borne v.  Gordon,  86  Wis.  92,  98,  56 
N.  W.  R.  834. 

2  Wells  V.  Lewis.  4  Met.  (Kj-.)  271; 
Chase  v.  Davis,  65  Me.  102;  Freeman 
V.  Prendergast,  94  Ga.  369;  Gibbs  v. 
Marsh,  2  Met.  (Mass.)  243,  253;  Tainter 
V.  Clark,  13  Met.  (Mass.)  220,  225; 
Parker  v.  Converse,  5  Gray  (Mass.), 
336,  341;  Nugent  v.  Cloon,  117  Mass. 
219.  221:  Wemyss  V.  WJiite,  159  Mass. 
484,  34  N.  E.  R.  718;  Cleveland  v.  1^1- 
lett,  6  Cush.  (Mass.)  408;  Stewart  v, 
Pettus,  10  Mo.  755;  Bain  v.  Matteson, 
.54  N.  Y.663,  667;  Pedrick  v.  Pedrick, 


167;  Zebach  v.  Smith,  3  Binn.  (Pa.) 
69:  Greer  v.  McBeth,  12  Rich.  Eq. 
(S.  C.)  254,  257:  Osborne  v.  Gordon, 
86  Wis.  92,  98,  99;  Lane  v.  Debenham, 
11  Hare,  188:  Warburton  v.  Sands,  14 
Sim.  622:  May  v.  May,  17  S.  Ct.  824 
(U.  S..  1897).  Where  an  executor  had 
a  discretionary  power  to  pay  a  leg- 
atee certain  sums  for  liis  support,  but 
if  the  latter  did  not  make  proper  use 
of  his  money,  then  only  to  pay  him 
enough  for  his  board;  and.  if  the  son 
should  die,  then  to  his  surviving  issue 
absolutely,  the  court  said  the  power 
was  given  to  the  executor  ratione 
officii  and  might  be  exercised  by  his 
successor.  Pedrick  v.  Pedrick,  50  N. 
J.  Eq.  479,  26  Atl.  R.  267.  The  su- 
preme court  of  the  United  States  has 
recently  affirmed  the  well  established 
doctrine  that  the  testator  may  dele- 
gate to  persons  who  are  named  in  the 
will  the  power  to  remove  a  trustee 
and  to  appoint  a  new  trustee  in  his 
place.  This  rule  was  discussed  in  a 
case  where  the  heirs  of  the  testator 
were  given  power  *'  by  their  unani- 
mous resolution,"  and  with  the  con- 
currence of  the  widow  of  the  testator, 
to  remove  a  trustee  for  good  and 
sufficient  cause.  No  necessity  exists 
to  resort  to  a  court  of  equity  to  deter- 
mine the  sufficiency  of  the  cause,  in 
the  absence  of  a  positive  showing 
that  the  power  to  remove  the  trustee 


48  N.  J.  Eq.  313, 21  Atl.  R.  946;  Frank-  and  to  appoint  a  new  one  has  been 
lin  V.  Osgood,  14  Johns.  (N.  Y.)  558;  unjustly  exercised.  May  v.  May,  17 
Jackson  v.  Given,  16  Johns.  (N.  Y.)    Sup.  Ct.  824. 


§  7S7.]  TESTAMENTAKY   "USES,  TRUST   ESTATES,  ETC.  1131 

§  787.  The  removal  of  trustees. —  A  trustee  may  be  re- 
moved and  a  new  trustee  appointed  in  bis  place  wben  it  shall 
aifirmatively  appear  to  tbe  court  tbat  tbe  interest  of  tbe  cestui 
que  trust  requires  it.  A  trustee  who  becomes  non  comjws  mentis^ 
permanently  leaves  the  state,  or  wilfully  neglects  the  perform- 
ance of  the  duties  of  his  trust,  as  where  he  neglects  to  pay  over 
or  account  for  income,  or  to  meet  the  debts  of  the  estate,  ma}^ 
be  removed.^  And  though  no  positive  acts  of  neglect  or  wrong- 
doing by  the  trustee  shall  appear,  if  such  a  state  of  mutual  ill- 
will  exists  between  him  and  the  beneficiary,  without  the  latter's 
fault,  that  to  continue  him  in  his  office  of  trustee  would  be 
detrimental  to  the  latter,  he  ought  to  be  removed.- 

It  will  be  presumed,  in  the  absence  of  evidence  to  the  con- 
trarv,  that  a  trustee  or  an  executor  has  properly  performed  the 
duties  of  his  office.  The  burden  of  proof  to  show  wilful  neglect 
or  misapplication  of  the  trust  funds  upon  his  part,  or  to  show 
that  a  state  of  affairs  exists  which  renders  it  necessary  to  re- 
move him,  is  upon  the  applicant  for  his  removal.  A  gocnl  and 
sufficient  cause  for  the  removal  must  be  shown.  Merely  to  show 
that  circumstances  exist  which  mai/  render  his  administration 
of  the  trust  detrimental  to  the  beneficiaries  is  not  enough  to 
effect  his  removal  and  the  substitution  of  a  new  trustee.  The 
circumstance  that  the  testator  was  acquainted  with  his  qualifi- 
cations for  the  carrying  out  of  the  trust,  and  that  he  has  selected 
him,  and  not  another,  to  execute  his  testamentary  intentions, 
should  have  some  weight  with  the  court  in  overcoming  frivo- 
lous objections  not  involving  any  flagrant  bi'each  of  trust.* 

liy  modern  statutes  the  new  trustee  becomes  vesteil  on  his 
appointment  <?o  instanfl  with  the  legal  title  and  no  conveyance 
to  him  is  necessary.  ISut  in  the  absence  of  statute  the  former 
trustee  must  convey  the  legal  title  to  liis  successor,  and  the 

'Bailey  v.   HaiU-y,  2  Del.  Ch.  95;  Estate,  12  Pa.  Co.  Ct.  R.  r.!)t ;  Mor^'un's 

Colli.T   V.   Hlak.%  14   Kan.  2r)(»;  Spar-  Estate,  8  Pa.  Co.  Ct.   K'.  2r.(l:   Im.ss  v. 

hawk    V.   Sparhawk.   114    Mass.   '.\TM\  Sowles.  (;2  Vt.  221,  lU  Atl.  H.  l»MI;  .Mc- 

Heott  V.  liiiri.l.  IIM  Mass.  215;  Preston  Pherson  v.  Cox.  »«  U.  S.  4(11, 
V.  Wilcox.  :5H   .Midi.  57H;  (Jartsi<le  v.         '■^May  v.  May.  17  Sup.  Ct.  n24:  Wil- 

(lartsifie,  11:5  Mo.  ;!18,20  S.  W.  R.  (5(li>;  son  v.  Wilson.  145  ]\IasH.  4110.  14  N.  E. 

(}re<;n   V.    P.laekwell,  :n    N.  .J.  E(|.  :{T;  R.  521;   Nathan's  Estate  (Pa..  1M)!»),  4:5 

In   re   .M((;illivray.  :v.\  N.  E.  R.  1077.  All.  R.  M-l 

1:{H  N.  Y.  :{0><;  Sliejilif  r<l   v.  McEvi-rs,        ''See  (•a.>es  cite.l  sii]ir<i,  in  note  1, 

4  .Jolins.   (Jh.   (N.  Y.)   1:10:   Hloonier's  p.  li:Jl. 
Apjieal,  8;i  Pa.  St.  45;  In  re  Simon's 


1132  LAW  or  WILLS.  [§  7S8. 

court  of  equity  in  removing  liim  will  ordinarily  decree  that  he 
shall  do  so,  and  punish  him  for  contempt  in  case  of  his  refusal 
to  convey.' 

§  788.  The  merger  of  the  equitable  and  legal  estates. —  If 
the  legal  and  the  equitable  interests  wiiich  are  disposed  of  by 
the  will  become  united  in  the  same  person,  the  equitable  title 
is  merged  into  the  legal,  under  the  rule  that  no  man  can  be  a 
trustee  for  himself.  A  merger  takes  place  only  where  the  two 
interests  are  of  the  mme  cJiaracter  and  are  acquired  by  the  party 
in  the  smne  capacity.  Thus,  if  the  interest  which  the  person 
has  as  a  trustee  is  di  future  interest,  and  that  which  he  has  as  a 
beneficiary  is  a  present  interest,  or  vice  versa,  no  merger  takes 
place.  Thus,  where  land  is  devised  to  A.  (who  is  the  heir  of 
the  testator)  for  life,  and  the  fee  is  devised' in  trust  to  B.  for  a 
purpose  which  fails,  no  merger  takes  place  during  the  life  of 
A.,  though  A.  ultimately  takes  the  fee  absolutely.^  And,  gen- 
erally, where,  because  of  the  peculiar  situation  of  those  wdio 
are  interested  in  the  property,  a  merger  would  work  an  injus- 
tice to  some  of  them,  or  if,  from  the  language  of  the  will,  it  is 
apparent  that  the  testator's  intention  will  be  defeated  if  the 
equitable  and  legal  interests  are  merged  in  the  same  person,' 
equity  will  not  permit  a  merger  to  take  place.  Thus,  where 
the  trust  is  an  active  trust  requiring  the  interposition  of  a 
trustee  to  carry  out  the  intention  of  the  testator,  and  the  bene- 
ficiary of  the  trust  is  the  heir  of  the  testator,  there  will  be  no 
mero-er  where  the  trustee  dies  before  the  testator,  and  the  land 

^O'Keefe  v.  Calthorpe,  1  Atk.  17;  greater  part  of  the  trust  fund,  is  a 

Greenhouse,  Ex  parte,  1  Madd.  109;  sufficient  ground   for    his   removal. 

Webster    v.    Vandeventer.    6    Gray  Gartside  v.  Gartside,  113  Mo.  3-18,  20 

(Mass.).  428;  Wallace  v.  Wilson.  34  S.  W.  R.  669. 

Miss.  357.    The  fact  that  tlie  trustee  2  Greer  v.  Chester,  131  N.  Y.  620,  36 

is.  by  liis  own  fault,  on  bad  terms  N.  E.  R.  863,  63  Hun,  329,  17  N.  Y.  S. 

with  the  beneficiaries,  that  he  exerts  238;  Asch  v.  Asch,  113  N.  Y.  232,  21 

an  undue  control  over  the  trust  prop-  N.  E.  R.  70. 

erty  against  the  wishes  of  the  bene-  ^  Adams  v.  Angell,  L.  R.  5  Ch.  D. 

ticiaries,  has  invested  the  property  in  634,  641,  645;  Chambers  v.  Kingman, 

•ways  which  differed  from  the  mode  L.  R.  10  Ch.,  D.  743,  745;  Donalds  v. 

of  investment  directed  in  the  will,  Plumb,  8  Conn.  453;   Hopkinson  v. 

and  persistently  refused  to  give  tlie  Dumas.  42  N.  H.  307;  Cooper  v.  Cooper, 

beneficiaries  any  information  as  to  5  N.  J.  Eq.  (1846),  9;  Hunt  v.  Hunt,  14 

the  condition    of  a   corporation  of  Pick.  (Mass.)  374;  Nicholson  v.  Hal- 

■which  he  was  president  and  treas-  sey,  7  Johns.  Ch.  (N.  Y.)  422.    See  also 

urer,  and  whose  stock  formed  the  1  Spences  Eq.  Jur.,  pp.  508,  573. 


§  7S9.]  TESTAMEXTART    USES,  TRTST    ESTATES,  ETC.  1133 

descends  incumbered  -with  the  trust  to  the  heir  of  the  testator. 
The  court  "vvill  then  appoint  a  new  trustee.'^  So,  also,  where 
land  is  devised  to  a  person  (A.)  in  trust  for  another  (B.)  for  the 
life  of  B.,  and  on  the  death  of  the  cestui  que  vie,  then  in  re- 
mainder in  trust  for  the  heirs  of  B.,  and  the  trust,  being  passive, 
is  executed  in  B.,  no  merger  of  the  legal  and  equitable  estates 
will  take  place  in  B.,  where  the  result  of  the  merger  would  be 
to  bring  into  operation  the  rule  in  Shelley's  case,  and  give  B. 
the  fee." 

§  789.  The  protection  and  preservation  of  the  trust  prop- 
erty by  the  trustee  — Tlie  degree  of  care  required. —  The 
trustee  is  in  Jaw  the  legal  owner  of  the  property.  He  is  en- 
titled to  the  possession  of  the  trust  property  as  against  the  ces- 
tui que  trust.  He  is  also  the  proper  and  necessary  party  to  all 
actions  at  law  relating  to  the  possession  or  protection  of  the 
trust  property  and  of  its  rents  and  profits.  The  right  of  a 
trustee,  judicially  appointed,  to  the  trust  property,  cannot  be 
attacked  collaterally.'  This  being  the  case,  there  is  no  neces- 
sity to  make  the  benefi.ciary  a  party  to  any  action  at  law  re- 
lating to  the  trust.  And  it  follows  that  a  judgment  against  a 
trustee  rendered  during  the  existence  of  the  trust  relation  is 
binding,  in  the  absence  of  fraud,  upon  the  beneficiaries  and 
their  personal  representatives,  heirs  and  next  of  kin.* 

As  a  consequence  of  the  complete  supervision  and  control 
which  a  trustee  has  a  right  to  exercise  over  the  property,  he  is 
usually  held  to  a  strict  accountability  for  the  performance  of 
liis  duties.  As  between  the  trustee  and  the  cestui  que  trusty 
the  obligations  and  duties  of  the  former  and  the  rights  of  the 
latter  are  to  be  deteririined  wholly  according  to  the  terms  of 
the  will  by  wliich  the  trust  was  created.  E(juity  has  exclusive 
control  to  cnforcf!  tlicsti  rights  and  to  secure  a  proper  jierform- 
anco  of  these  obligations.     But  there  are  certain  duties  which 

»W(x>.lriiir    V.  W,K„iruir,   11    X.  J.  L".'  App.  Div. 'J  I,  iii.i.liliiMi;  First  Nut- 

Eq.  70.  IC,  .All.  R.  t.  ]5ank    v.  Niiti<.iial    HidiKhviiy  Bunk, 

2Ven!ibl.-s  V.   Morris.  7  T.   R  'H2;  51  N.  R  li,  ;{!»s.  lod  N.  V.  l.-.U. 

Silv<»*t«;r  V.  Wils^m.  2  T.  R.  411;  I.<.ril  <  I'ollitz  v.  Trust  (\...  .^J  1-\'(1.  R.  210; 

Say  jiml  .S<-al  v.  Jones,  :j  Hro.  C.  C.  1  III.  liolx-rlson  v.  \:in  ( 'l«'v<>,  I'Jl)  Irnl.  217, 

And  Hoo  aiwj  Do\vne«  v.  (iraz<'l)r(«>k,  20  N.  K.  U,  HOU;  Manson  v.  Duncan- 

.i  Mer.  2(X),  20^;  Selby   v.  Alston,  8  won.  17  S.  Ct.  •M7;  In    ro   St »•  wart,  5 

VcH.  im.  N.  Y.  S.  127,  120  N.  Y.  210,  27  N.  E.  R. 

'Judgment  (1897),  47  N.  Y.  S.  HbO,  2oy. 


llOi  I.-VW    OF    WILLS.  [§  789. 

are  incumljent  upon  all  trustees,  whatever  may  be  the  nature 
of  the  trust  estate,  and  whatever  may  be  the  special  duties  of 
the  trustee  in  the  particukir  case.  Thus,  it  is  the  duty  of  a 
trustee,  immediately  upon  his  acceptance  of  the  trust,  to  re- 
duce all  property  which  is  outstanding'  into  his  possession  with- 
out unnecessary  delay.  If  the  pi-opcrty  consist  of  debts,  he 
must  collect  them  as  soon  as  possible.  If  the  trustee  shall  un- 
reasonably delay  to  collect  money  which  was  due  on  debts 
forming  a  part  of  the  trust  estate,  or  if  he  shall  neglect  to  take 
possession  of  land  promptly,  he  will  be  personally  liable  for 
any  damages  which  may  result  to  the  beneficiaries  by  reason 
of  his  negligence  and  delay. ^ 

The  trustee  is  permitted  to  exercise  a  reasonable  discretion 
in  instituting  legal  proceedings  to  collect  debts  due  the  testa- 
tor. If,  from  all  the  facts,  a  demand  appears  to  be  collectible 
by  action,  a  failure  to  institute  legal  proceedings  promptly 
mav  be  nefflis^ence  for  which  the  trustee  or  the  executor  would 
be  chargeable.  On  the  other  hand,  a  trustee  or  other  fiduciary 
may  refrain  from  litigation  where  there  is  a  likelihood  of  large 
expense  being  incurred,  and  little  or  no  probability  of  a  suc- 
cessful termination  of  the  action,  or  where  a  judgment  would 
be  uncollectible.  If  the  duties  of  the  trusteeship  are  so  nu- 
merous and  onerous  that  the  trustee  is  unable  to  perform  them 
himself,  he  may  employ  trustworthy  agents.  Thus,  a  trustee 
may  employ  an  agent  or  attorney  to  collect  moneys  outstand- 
ing, and,  unless  he  is  guilty  of  negligence  in  the  selection  of 
the  agent,  he  is  not  liable  for  losses  occasioned  by  the  agent 
embezzling  or  losing  the  money.-  So  a  trustee  may  employ 
brokers  or  agents  to  purchase  and  sell  the  property  under  the 
trust,  if  such  a  method  is  the  customary  and  usual  one  pursued 
by  persons  acting  with  reasonable  care  and  prudence  in  the 
ordinary  course  of  business  of  a  like  nature,  and  may  commit 
to  the  care  of  these  agents  the  trust  pro])erty.  If  the  trustee 
has  exercised  dilis^ence  in  selectinfj:  such  ai^ents  he  is  not  liable 
for  the  loss  of  the  property  while  it  is  in  their  hands.''     The 

1  Hunt  V.  Gontrum,  80  Md.  64,  30  Brier,  Brier  v.  Evison,  L.  R.  26  Cii. 
Atl.  R.  620.  Div.  238,  242,  243. 

2ExparteBelchier,  Amb.  218;  Tel>  3  Speight  v.  Gaunt,  L.  R.  9  App. 
ber  V.  Carpenter,  1  Madd-  291;  In  re    1;  Lewis  v.  Reed,  11  Ind.  239;  Leg- 

gett  V.  Hunter,  19  N.  Y.  445. 


§  TS9.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC. 


li; 


trustee  or  executor,  as  soon  as  debts  outstanding  are  collected, 
ought  to  deposit  the  proceeds  in  his  name  as  trustee  in  an  au- 
thorized depository  for  trust  funds.  If  he  shall  keep  the  trust 
money  on  deposit  in  a  bank  to  await  investment,  or  to  pay 
debts  or  legacies,  or  for  otlier  trust  purposes,  he  will  not  be 
responsible  in  case  of  the  failure  of  the  bank.^ 

A  trustee  is  culpable  if  he  shall  permit  the  money  to  remain 
out  of  his  actual  possession  for  an  unreasonable  time.  An  ex- 
ecutor who  permits  money  to  remain  on  deposit  in  a  bank 
more  than  a  year  after  the  death  of  his  testator,  and  perhaps 
for  a  shorter  period  if  all  the  debts  and  legacies  have  been 
paid,-  or  a  trustee  who  permits  trust  money  to  remain  on  de- 
posit when  the  testator  has  directed  its  investment  otherwise, 
or  when  the  court  has  directed  him  to  pay  it  over  to  his  suc- 
cessor,' or  to  deposit  it  with  the  clerk  of  the  court,*  will  bo 
liable  for  the  principal  in  case  of  the  failure  of  the  bank  and 
for  loss  of  income  otherwise.^  A  trustee  should  retain  and  de- 
posit trust  funds  separate  from  his  own.  If  he  siiall  commingle 
trust  money  with  his  own  so  that  they  are  indistinguishable, 
the  cestui  que  trust  is  entitled  to  a  preference  over  other  cred- 
itors of  the  trustee.® 

"Where  the  fund  in  trust  has  been  deposited  in  a  bank  to  the 
trustee's  individual  credit,  the  cestui  que  trust  need  not  prove 
that  the  identical  money  is  on  deposit,  to  sustain  his  chiim 


1. Johnson  v.  Newton,  11  Hare,  160; 
Swinfen  v.  Swinfen,  29  Beav.  207. 211 ; 
Fenwirke  v.  Clark.  31  K  J.  (N.  S.) 
72S:  Breneinun  v.  Mylin,  12  Pa.  Dis. 
Ct.  R.  :{21. 

-  I)ark«  V.  Martj'n,  1  Boa  v.  525; 
Movie  V.  MoyI(?.  2  Uuss.  &  My.  710. 

^Luiihaiii  V.  I'.liui'i.-ll.  27  L.  J. 
(N.  S.)  17'.». 

<  Wilkinson  v.  B<'\vi<k,  4  .Jur.  (N.  S.) 
1010. 

*  Brown  v.  Mi>Mt;,'iini<Ty,  4  Salk. 
853. 

«De  Jnrnfttn  v.  I).-  .I.irn. ■!(••.  11 
Alik  70!»;  Kncislf-y  v.  VV.-ir,  Hi  Hi. 
App.  251;  ManKfi<'!tl  v.  Alw(M».i.  Hi 
III.  107;  Tf)inpkins  v.  l{oynol<lM.  17 
Ala.  KHI;  Bnh.in  v.  I'.nin.T.  2  Ki-iif. 
(N.  Y.)  :!:{:!;  Matter  of  Mount,  2  Ht-lf. 


(N.  Y.)  405;  Marsh  v.  Gilbert,  2  Redf. 
(N.  Y.)  465;  Denike  v.  Harris.  84  N.  Y. 
89;  In  re  Holmes  (N.  Y.,  1889),  53  N. 
E.  R  1120:  Moyer  v.  Petway,  76  N.  C. 
327;  Tuoker  v.  Tiickcr.  33  N.  J.  E»i. 
235;  Cnmc  v.  Howi'M,  35  N.  J.  E<|. 
374:  Sullivan  v.  Howard,  20  M.I.  194; 
Willes  V.  (Jresliani,  2  Drew.  258; 
(irove  V.  Price,  2(i  Beav.  103;  Ex 
jHirle  0;,'ic.  L.  H.  8  Cli.  711;  1 'addon 
V.  Ri<-liardson,  7  I)('<i<'x,  M.  iSc  (J.  503; 
Marine  Bank  v.  Fultmi.  2  Wall.  (U.  S.) 
252.  And  when*  tin-  Irustei*  dies,  his 
piTsonal  r<'pn's(Mdaliv«<  must  jiay  tlio 
crsfiii i/iif  tnixl  liefor(>  he  can  lepilly 
attempt  toHMtisfy  the  claimw  of  other 
crcditorH.  limit  v.  Smith  (N.  J., 
I889j,  13  Atl.  K.  123. 


1106 


LAW    OF    AVI  U.S. 


[§  T89. 


afrainst  tlie  administrator  of  the  trustee.  It  will  be  sufficient 
to  show  that  the  trust  fund  was  deposited  there  by  the  trustee 
and  that  so  much  money  was  still  to  his  credit  in  the  bank.^ 

It  is  the  duty  of  the  trustee  to  pay  all  taxes,  interest  on  in- 
cumbrances on  land,  and  to  keep  all  buildings  in  repair,  out  of 
the  income  of  the  property,  unless  he  is  expressly  directed  to 
provide  for  these  expenses  out  of  the  principal.^  Where  the 
property  which  is  placed  in  trust  is  liable  for  the  debts  of  the 
testator,  or  for  charges  which  have  been  placed  upon  it  by 
the  will,  the  trustee  is  bound  to  see  that  they  are  promptly 
paid,  and  he  will  be  personally  liable  for  interest  accruing 
thereon  on  his  unreasonably  delaying  to  do  so.'  But  it  is  not 
every  debt  which  a  trustee  can  pay.  lie  must  determine  at 
his  own  peril  whether  the  claim  is  valid  and  is  justly  due, 
and,  if  he  shall  exercise  his  judgment  in  a  reasonable  and  pru- 
dent manner,  and  after  making  a  reasonably  careful  inquiry, ' 
he  will  not  be  personally  liable  though  the  payment  was 
wrongfully  made.^ 


1  Wulbern  v.  Timmons  (S.  C,  1899), 
33  S.  E.  R.  568.  When  a  trustee 
mixes  his  principal's  money  with  his 
own  so  that  it  cannot  be  distin- 
guished what  particular  part  is  trust 
money  and  what  part  is  private 
money,  equity  will  follow  the  money, 
by  taking  out  of  the  trustee's  estate 
the  amount  due  the  cestui  que  trust, 
notwithstanding  there  are  no  facts 
or  inferences  tending  to  show  that 
the  particular  assets  sought  to  be 
subjected  were  swelled  or  increased, 
except  as  that  might  normally  hap- 
pen by  the  condition  of  the  trustee's 
estate  resulting  from  the  payment 
of  some  of  his  business  debts  with 
the  money  of  another.  Bircher  v. 
St.  Louis  Sheet  Metal  Ornament  Co., 
77  Mo.  App.  509.  Where  one  is  shown 
to  have  had  the  possession  of  trust 
funds  as  trustee,  and  he  mingles 
them  with  his  own  funds,  it  will  be 
presumed  that  whatever  money  or 
property  was  used  by  the  trustee 
after  such  commingling  was  his  own, 
and  was  not  the  trust  fund,  and  that 


such  fund  remained  in  his  hands, 
forming  a  part  of  the  sum  found  in 
the  possession  of  his  administrator. 
Where  trust  moneys  are  siiown  to 
have  been  in  the  hands  of  a  trustee 
at  a  certain  date,  and  he  paid  inter- 
est on  them  until  his  death,  the  fact 
that  he  mingled  part  of  the  moneys 
W'ith  his  own  and  deposited  them  in 
a  bank  is  sufficient  to  entitle  the 
cestui  que  trust  to  a  preference  over 
other  creditors  of  the  trustee,  though 
it  is  impossible  to  point  out  the  pre- 
cise thing  in  which  the  trust  fund 
has  been  invested,  or  the  precise  time 
when  the  conversion  took  place. 
Order  (1899)  55  N.  Y.  Supp.  708,  37 
App.  Div.  15,  affirmed.  In  re  Holmes, 
53  N.  E.  R.  1126. 

2  Mansfield  v.  Alwood,  84  III  497; 
Hepburne  v.  Hepburne,  2  Bradf.  (N. 
Y.)  74;  In  re  Albertson,  46  Hun,  566; 
ante,  §  436. 

3  Adair  v.  Brimmer,  74  N  Y.  589. 

4  Draper  v.  Stone,  71  Me.  175.  The 
estate  of  one  who  held  land  in  trust 
for  a  widow  and  her  children,  and 


I   TS9.]  TESTAMENTARY    USES,  TRUST   ESTATES,  ETC.  1137 

In  everv  case,  whether  the  trustee  is  collecting  outstanding 
claims,  enforcing  contracts  or  paying  debts,  or  whether  he  is 
caring  for  the  preservation  and  the  investment  or  re-investment 
of  the  property,  the  trustee  will  be  held  to  a  liigJi  degree  of  care 
and  intdligence,  and  will  be  required  to  take  every  precaution, 
which  a  reasonably  prudent  man  would  take  of  his  own  prop- 
erty. It  is  perfectly  true  that  in  many  of  the  early  cases  a 
trustee  was  held  to  only  a  slight  degree  of  care  and  that  he 
Avas  only  considered  liable  for  gross  negligence.  But  this  rule, 
it  should  be  remembered,  was  due  to  the  fact  that  a  trustee,  in 
the  absence  of  statute,  received  no  compensation  for  the  per- 
formance of  his  fiduciary  duties,  and  was  based  upon  the  rule 
that  a  gratuitous  bailee  was  liable  for  gross  negligence  only, 
Avhich  does  not  now  apply.  At  the  present  time,  both  in  Eng- 
land and  in  America,  testamentary  trustees  and  executors  re- 
ceive a  compensation,  the  amount  of  which  is  fixed  by  statute. 
Xot  only  must  a  trustee  exercise  the  highest  degree  of  care  and 
diligence  in  performing  the  duties  of  his  trust,  but  he  must  con- 
duct himself  towards  the  beneficiaries  in  executing  his  trust 
with  the  most  scrupulous  gOod  faith.  If  the  trustee  shall  specu- 
late with  the  trust  funds,  or  if  he  shall  invest  them  in  improper 
securities,  or  if  he  uses  them  in  his  own  business,  he  is  not  only 
liable  for  any  loss  which  may  result,  but  ho  must  pay  over  to 
the  beneficiaries  any  profit  which  has  been  made  as  well.^  lie 
ouglit  in  no  case  to  be  permitted  to  nuike  any  profit  indlvid- 
wdbj  from  his  employment  of  the  trust  property  except  his 
commissions.  So,  if  in  managing  the  trust  funds  he  shall  min- 
gle them  with  his  own  pro[)(jrty,  as,  for  example,  by  depositing 
trust  money  in  his  imlividual  name  in  a  bank,  equity  will  hold 
liim  liable  for  any  resulting  loss  or  depreciation  of  the  estate. 

■>rltl,i,ut  their  consent  expanded  rents  Fchliiif^or  v.  Wood,  l^l  Pa.  St.  517, 19 

and    prolit.s   in    purcli.isiri;;  an    ont-  Atl.  It,  710. 

Ktan.iing  titUs  Uj  tliu  land,  i.s  lial)I<j        1  O'iljiilt.ran  v.  Fitz^'cralii.  71  III.  M; 

for  tho  amount  so  oxi>cndcd.     Shaw  TafL  v.  Stow  (Mass.,  1S<)'.)).  r,\  N.  K.  It. 

V.  ]h>\i-rm<m.  81  M<1.  215.  31  Atl.  11.  50(5;  Trull    v.  Trull,  1.3  Alk'U  (Mass.), 

7oy.     Where  a  tritstoe  makes  a  prom-  407;  Marsli  v.  Kenton. UU  Maas.  II}:.*,  1;15; 

ise  that  is  in  tenns  a  jwrw^nal  one,  Uirici  v.  HtK-'clceU'r,  72  Mo.  A  pp.  (501; 

and  that  is  beyond  his  iKjwcrs  as  ox-  H<jniaino   v.    llendricksen,  27   N.   J. 

fcntor  and  truste)-,  the  fart  that  tho  Kfj.  102;  HIauvelt  v.  Ackerniann,  20 

consideration  for  sueh  proniiso  Iwn-  N.   .1.    V)t[.    Ml,   llH,   Ml);    Fulton    v. 

eJited  tli(!  trust  (estate  (Un-n  not  re-  Whitney,  00  N.  Y.  51b. 
lievc    him    from    i>er.sonal    liahility. 


1138  LAW   OF   WILLS.  [§  789. 

Aside  from  any  question  of  fraud  or  gross  ncg-lijTfence,  it  is 
the  rule,  both  in  law  and  in  equity,  that  an  executor  shall  not 
be  liable  for  losses  occurring  to  the  estate  solely  by  reason  of 
the  default  or  negligence  of  his  co-executor.^  So,  also,  a  trustee 
shall  not  be  liable  for  the  negligent  act  or  the  carelessness  of 
his  co-trustee  in  which  he  did  not  actively  participate.-  Thus, 
an  executor  will  not  be  personally  liable  for  the  loss  of  the 
funds  of  the  estate  through  the  insolvency  of  a  co-executor  in 
"whose  custody  they  are,  where  the  party  in  default  was  solv- 
ent at  the  death  of  the  testator,  and  since  that  time  no  fact 
had  come  to  the  knowledge  of  his  associate  that  would  indi- 
cate he  was  insolvent.'  And,  a  fortiori^  a  trustee  who  is,  with 
the  consent  of  the  beneficiaries,  deliberately  excluded  from  all 
active  participation  in  the  control  and  management  of  the  trust 
property,  which  is  exclusively  under  the  management  of  a 
trustee  w^ho  embezzles  it,  will  not  be  responsible  for  the  actions 
of  the  Tvrong-doer.''  If,  however,  a  trustee  or  an  executor  has 
notice  of  the  wrongful  acts  of  an  associate,  and  he  is  passive  as 
regards  such  acts,  he  will  be  liable.^  As  soon  as  the  knowledge 
of  the  illegal  investment,  or  illegal  payment  of  trust  funds,  or 
of  any  other  breach  of  trust,  comes  to  his  knowledge,  he  ought 
to  protest  against  it,  and  to  take  immediate  steps  to  recover 
the  trust  property  and  to  protect  what  remains.  His  failure 
to  act,  or  his  silence,  after  the  knowledge  has  come  to  him  Avill 
be  equivalent  in  law  to  gross  negligence,  and  will  render  him 
personally  liable  for  the  tortious  action  of  his  associate,  though 
lie  has  never  participated  in  it  or  derived  any  benefit  from  it.'' 

A  trustee  w4io  joins  with  a  co-trustee  in  signing  a  receipt 
for  money  w^hich  is  to  come  under  the  trust  is  personally  liable 
for  only  so  much  of  it  as  comes  in  his  hands.  He  cannot  be 
called  to  account  for  that  portion  of  it  which  is  received  and 

1  Townley  v.  Sherborne,  Bridg.  Re-  *  In  re  "VVesterfield,  53  N.  Y.  S.  25. 

ports,  35;  Cro.  Car.  312;  Hargthorpe  8  in  re  Westerfield,  58  N.  Y.  S.  25: 

V.  Mitford,  Cro.  Eliz.  318;    Kerr  v.  Monell  v.  Monell,  5  Johns.  Ch.  (N.  Y.) 

Waters,  19  Ga.  136;  White  V.Bullock,  283;   Dix  v.  Burford,  19  Beav.  409; 

20  Barb.  (N.  Y.)  91.  Candler  v.  Tillet,  22  Beav.  257. 

2Ray  V.  Doughty,  4  Blackf.  (Ind.)  6  Lincoln  v.  Wright,  4  Beav.  427; 

115;  Royal  v.  McKenzie,  25  Ala.  3G3;  Egbert  v.Butler,21  Beav.  5G0;  Thomp- 

In  re  Westerfield,  53  N.  Y.  S.  25.  son  v.  Finch,  23  Beav.  226. 

3  In  re  Myers'  Estate,  187  Pa.  St. 
247,  42  W.  N.  C.  435,  41  Atl.  R.  24. 


§  TS9a.]  TESTAMEXTAEY    USES,  TRUST    ESTATES,  ETC.  1139' 

embezzled  by  bis  co-trustee  witbout  bis  knowledge,  for  usually 
tbe  mere  signing  of  a  receipt  by  a  trustee  does  not  form  an 
excei^tion  to  tbe  general  rule  tbat  be  is  not  liable  for  tbe  wrong- 
doing of  an  associate.  But  tbis  is  to  be  understood  witb  tb& 
qualification  tbat  tbe  joining  in  tbe  receipt  for  tbe  money  is 
done  for  mere  conformity  to  tbe  directions  contained  in  tbe 
will.  If  tbe  receipts  of  all  trustees  are  not  indispensable  accord- 
ing to  tbe  terms  of  tbe  trust,  and  a  trustee  unnecessarily  joins 
in  a  receipt,  be  will  be  liable  for  tbe  default  of  bis  co-trustee, 
tbougb  be  ma}^  not  bave  retained  any  of  tbe  money  for  wbicb 
tbe  receipt  was  given. ^  AVitb  executors  tbe  rule  is  quite  tbe 
reverse.  Wbile  it  may  be  necessary,  in  tbe  case  of  a  trust,  for 
both  trustees  to  join  in  tbe  receipts,  or  in  deeds  of  convers- 
ance to  make  a  good  title,-  tbis  is  by  no  means  necessary  in  tbe 
case  of  a  transfer  of  tbe  personal  property  by  joint  executors ; 
so  tbat  if  one,  witbout  tbe  necessity  for  it,  does  so,  be  is  pre- 
sumed to  bave  assumed  a  power  over  it,  wbetlier  be  in  fact 
received  it  bimself  or  not.'' 

§  789a.  A  trustee  cannot  pnrcliase  the  trust  property  — 
The  remedy  of  the  cestui  que  trust. —  It  is  a  general  rule  in, 
equity,  wliicb  may  be  subject  to  an  exception  created  by  tbo 
express  language  of  the  testator  in  tbe  will,  tbat  a  trustee  in 
executing  a  power  of  sale  over  property,  wbetber  real  or  per- 
sonal, cannot  at  tbe  same  time  be  tbe  purchaser  of  tbe  prop- 
erty. Tbe  sale  may  be  set  aside  on  the  application  of  tho 
cestui  que  trust.  It  is  immaterial  that  the  trustee  paid  an  ade- 
quate price  and  tbat  no  actual  or  positive  advantage  was  taken 
by  the  trustee;  for,  thougli  these  facts  nuiy  be  proved  in  a  few 
cases,  in  most  cases  of  purchases  by  trustees  it  is  utterly  im- 
possible to  discover  any  positive  and  decisive  evidence  upon 
this  point.^     A  i)urchase  of  trust  property  by  a  trustee  is  invalid 

'Ilfiiton  V.  ^farriott,  Pre  CIi.  17:{;         <  ICx  itarto  Lact-y.  G  Vos.  02r>,  0','7; 

JY'llows  V.  Mitrlu-11,  1  P.  WiiiH.  81;  F<..\  v.  Mackrutli.  4  Bro.  P.  C.  Toml. 

In  re  Fry<'r,  .'5   I\.  &  J.  317;  Prico  v.  2.-,y.  2  Pro.  C.  C.  400.  2  Cox,  :52();  K.v 

Stokfjs,  11  Vr's.  :{ii);  Stowo  v.  Pdwon,  partu  Pcriiiott,  10  Vcs.  It'.Ci;  (iili>;uii  v. 

OOMasH.  1D4;  Kipv.  DeniHton,  4  Johna  Jcycs,  «  Vuh.  277;  Hall  v.  llali.-tt,   1 

(N.  Y.)y2.  Cox,  i:{4;  Piko  v.  ViK'ors,  2  1).  iV  \V. 

2 Sec  J..  1122.  202;  0^(1011  v.  Larriiboo.  57  PI.  ;Imi); 

'Priro  V.  Stokos.  11  Vofl.  319,324,  JuriiiKon   v.   ainscock,   29    Mo.    MM; 

32.-);  ChamlxTs  v.  Minrliin,  7  Vus.  198;  Hliute  v.  Austin  (N.  C.  1897).  27  S.  R 

Clark  V.  Jenkin.H,  3  Rich.  Eq.  (S.  C.)  It  00;  Martin  v.  Wyncoop,  12  Ind.  20(1. 

3ia 


1140  LAW    OF    WILLS.  [§  789(2. 

though  it  is  made  at  an  auction  sale  which  is  the  result  of  the 
action  of  a  third  party  ^  as  when  a  sale  is  made  ah  invito  upon 
the  application  of  an  execution  creditor.^  A  sale  made  to  a 
trustee  through  a  third  person,  or  to  a  trustee  as  the  agent  of 
a  third  person,  is  also  invalid.  But  in  all  cases  in  which  the 
invalidity  of  a  purchase  from  himself  by  a  trustee  is  in  ques- 
tion, while  it  is  not  necessary  to  show  that  an  actual  advan- 
tage was  talcen  hy  the  trustee  or  that  the  price  paid  was  inade- 
quate, it  is  necessary  to  show  that  the  relation  of  trustee  and 
beneficiary  existed  at  the  time  of  the  purchase^  and  for  such  a 
period  prior  thereto  as  to  give  the  trustee  an  opportunity  of 
acquainting  himself  with  the  value  of  the  property  which  will 
in  fact  ffive  him  an  advantao-e. 

A  trustee  may  legally  purchase  trust  property  after  he  has 
ceased  to  fill  the  office  of  a  trustee  of  that  property.  But  he  can- 
not continue  to  act  as  a  trustee  until  almost  immediately  prior 
to  the  consummation  of  the  sale,  acquiring,  in  his  character  of 
trustee,  information  which  is  his  exclusively,  and  which  gives 
him  a  manifest  advantage  of  the  cestui  que  trust  when  subse- 
quently he  stands  in  the  attitude  of  a  purchaser.^  A  purchase 
which  has  been  made  by  the  trustee  during  the  existence  of 
the  jfiduciary  relation  is  not  invalid  if  the  cestui  que  trust, 
being  sui  juris,  has  had  the  situation  thoroughly  explained  to 
him  so  that  he  A'nows  the  sale  is  to  the  trustee,  and  the  trustee  has 
disclosed  to  the  beneficiary  all  information  which  he  has  ac- 
quired by  his  official  position  which  would  give  him  an  ad- 
A^antage.^  But  courts  of  equity  are  prone  to  regard  a  transaction 
of  this  sort  with  some  prejudice,  and  it  will  be  supported  only 
upon  the  strictest  proof  of  the  highest  degree  of  good  faith 
on  the  part  of  the  trustee.  The  burden  of  proof  is  upon  him 
to  show  all  facts  which  are  a  necessary  basis  for  the  presump- 
tion that  the  transaction  was  made  in  perfect  good  faith,  and 
unless  he  shall  do  so  the  ordinary  presumption  will  apply.* 

1  See  cases  cited  last  note;  Ex  parte  Cleghorn,  21  Ind.  80;  Pratt  v.  Thorn- 

Lacey,6  Ves.  625,629;  Ex  parte  James,  ton,  28  Me.  Soo;  Brown  v.  Cowell,  116 

8  Yes.  348.  Mass.  465;  Jennison  v.  Hapgood,  7 

2Downes  V.  Grazebrook,  3  Mei".  200,  Pick.  (]\Iass.)  1;  Wormley  v,  Worm- 

208;  Ex  parte  James,  8  Ves.  348,  352.  ley,  8  Wheat.  421.     And  see  Fox  v. 

'  Ex  parte  Lacey,  6  Ves.  625,  626,  Mackreth,  svpra. 

628;  Morse  v.  Royal,  12  Ves.  373;  Coles  <  "  a  trustee,"  said  Lord  Eldon.  in 

V.  Trecothick,  9  Ves,  234,  247;  Rice  v.  Coles  v.  Trecothick,  9  Ves.  234,  "may 


§   7S9(/.]  TESTAMENTARY    USES,  TKUST    ESTATES,  ETC.  1141 

The  validity  of  a  purchase  by  a  trustee  can  be  questioned  only 
by  the  cestui  que  trust,  or  his  heirs  or  personal  representatives, 
after  his  death.  A  stranger  to  the  trust  has  no  standing  in 
court  upon  this  point.'  The  purchase  by  the  trustee  is  not  ab- 
solutely void.  It  is  voidable  merely;  and  it  may  be  confirmed 
by  those  having  interests  in  the  trust  property,  either  expressly 
or  by  their  actions,  and  even  by  acquiescence  for  a  long  period 
after  they  shall  have  acquired  a  knowledge  of  the  sale  and  its 
circumstances.-  The  party  who  confirms  must  of  course  be  sui 
juris.  He  must  act  voluntarily  and  freely.  It  must  be  proved 
not  only  that  he  was  free  from  the  least  susjyicion  of  pressure, 
fear  or  undue  influence,  but  also  that  he  thoroughly  understood 
that  his  language  or  his  actions  will  have  a  confirmatory  effect 
upon  a  transaction  which  he  knows  he  has  a  right  to  set  aside. 
In  other  words,  he  must  know  his  rights  and  understand  that 
he  is  waiving  them.^ 

A  presumption  of  ratification  may  arise  from  long-continued 
acquiescence.  The  objection  to  the  validity  of  a  sale  by  a 
trustee  to  himself  must  be  raised  within  a  reasonable  time,  the 
length  of  which  will  always  depend  upon  the  special  facts  of 
the  particular  case.*  Acquiescence  alone,  without  anything 
more,  may,  if  very  long  continued,  operate  as  a  confirmation  of 
the  purchase,  particularly  where  the  beneficiary  was  sui  juris  and 
had  an  opportunity  for  inquiry  of  which  he  neglected  to  avail 
himself.  Particularly  would  this  be  the  rule  where  the  benefi- 
ciaries have  silently  stood  by  and  permitted  the  property  to  be 
conveyed,  not  only  to  the  trustee  himself  as  an  individual,  but 
from  him  as  an  individual  to  a  honafide  purchaser  without  no- 
buy  from  the  cestui  que  trust,  pro-  237;  Newcomb  v.  Brooks,  IG  W.  Va. 
vided  there  is  a  distinct  and  c-lear    32. 

contract,  ascertained  to  be  such  alter  -  Campbell  v.  Walker,  "»  Vcs.  G78, 
a  jwiloiLs  and  scrupulous  examina-  082;  Murray  v.  Palmer,  2  Sch.  &  Lef. 
tion  of  all  the  circumsUmces.  that  the  474,  470;  Morse  v.  Parker,  12  Ves.  353; 
rintui  que  trust  intendi-d  the  trustee  Adams  v.  Clifton,  1  liuss.  21)7;  Dover 
should  buy,  and  tiu^nj  is  ikj  fraud,  no  v.  Huck,  5  (ii(f.  r)7;  Slump  v.  Ciaby,  3 
conc(«ilTn'Mit,  no  advantaK*'  taken  l)y  J)i'  (Jcx,  Mac.  tt  (1.  (>'J3. 
the  trustfc  of  information  ac<|uir<'d  3(",.(,u-,,  v.  Hidlard,  3  Hro.  C.  ('.  139; 
Viy  him  in  his  rharactcr  iw  a  truHt<•^^  .Ia(dison  v.  .Jackson,  47  (la.  Wt;  Ilix^H 
1  admit  it  is  a  didicidt  caw  to  mak(5  v.  Smith.  3  A.  K.  Marsh.  (Ky.)  338; 
out  wlicrevfr  it  is  cotit*'nd(!.l  thiitthe  Kvans  v.  Korfinan,  (iO  Mo.  4  IIJ. 
excejition  pri'vaih.  *  Aii-xandrr   v.   .Mcxamli'r,   4(5  fliu 

>  liiHTum  V.  .Schcnck,  41  N.  V.  IHJ;  2;tl;  CamjilxH  v.  WalU.r.  :>  V.-s.  G78, 
Johns«jn  v.  liennett,  3U  Barb.  (N.  Y.)    GHO,  6«3. 


11 -i3  LAW   OF    WILLS.  .  [§  TS'Jcf. 

tice  of  the  trust,  and  the  property^  luul  been  greatly  improved 
by  the  hitter  iiud  has  become  enhanced  in  value.  But  gener- 
ally, where  mere  silence  is  relied  on  as  a  confirmation,  it  must 
be  shown  that  the  cestui  qiie  trust  knew  of  the  fact  that  the 
trustee  had  purchased  the  property  for  himself.  lie  need  not 
have  actual  knowledge  of  the  sale.  The  constructive  notice 
arising  from  the  recording  of  the  instrument  of  conveyance  to 
•the  trustee  would  probably  be  sufficient.^ 

A  beneficiary  who  elects  to  repudiate  a  purchase  of  the  trust 
•property  by  the  trustee  may  insist  upon  a  reconveyance  of  it 
to  himself,  or  to  a  new  trustee  who  is  appointed  by  the  court, 
if  it  still  remains  in  the  ownership  of  the  trustee  who  has  bought 
jt.'^  The  beneficiary  may  also  insist  upon  a  reconveyance  where 
the  property  has  been  transferred  to  a  purchaser  with  notice 
of  the  trust.^  He  must  re])ay  the  jjyuTcliase-money  with  interest^ 
and  all  moneys  which  have  been  legitimately  expended  on  the 
property  in  repairs,  and  in  improvements  which  are  of  a  per- 
manent character.  If  he  is  unable  or  unwilling  to  do  this,  a 
resale  may  be  ordered  by  and  under  the  direction  of  the  court 
upon  such  terms  as  will  secure  to  the  trustee  what  he  has  ex- 
pended.* 

The  decree  must  also  direct  that  the  trustee  shall  account  for 
all  rents  received  by  him,  as  well  as  other  profits  resulting  from 
the  sale  of  the  produce  of  the  land  while  he  held  it.  lie  is  also 
responsible  for  waste,  and  for  rent  for  any  portion  of  the  land 
which  he  actually  occupied.^  If,  after  having  purchased  the 
property,  the  trustee  has  sold  it  to  a  purchaser  in  good  faith 
and  for  a  valuable  consideration,  so  that  it  cannot  be  recon- 
veyed,  the  trustee  is  liable  for  the  amount  which  he  received 
for  the  property,  and  not  merely  for  the  o/mountfor  which  he,  as 
^  trustee,  sold  it  to  himself  as  an  individual.®    And  where  under 

1  Wright  V.  Vanderplank,  3  K  &  J.  v.  Stinson,  63  111.  App.  319;  Wright  v. 

1 ;  Baker  v.  Bradley,  7  De  Gex,  Mac.  Bruschke,  63  111.  App.  358. 

«&G.  507.                                            '  5  Hall  v.   Hallet,   1   Cox,  134;   Ex 

-  Lord  Hardwicke  v.  Vernon,  4  Ves.  parte  Hughes,  6  Ves.  634,  635;  Camp- 

411;   Randall  v.  Errington,  10  Ves.  bell  v.  Walker,  5  Ves.  678;  Ex  parte 

433;   Hamilton  v.  Wright,   9  CL  &  Bennett,  10  Ves.  400,  401;  Ex  parte 

Fin.  Ill,  133.  James,  8  Ves.  351;  Ex  parte  Lacey,  6 

3  Dunbar  v.  Tredennick,  3  Ball  &  Ves.  G35,  630. 

Be.  304.  *>  Mareck  v.  Minneapolis  Trust  Co. 

*  Connecticut  Mutual  Life  Ins.  Co.  (Minn.,  1896),  77  N.  W.  R.  738;   Ex 


§   790.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  114:3 

the  circumstances  a  reconve3'ance  is  possible,  it  ought  to  be 
made  without  prejudice  to  the  rights  of  lessees,  mortgagees  and 
other  incumbrancers  in  good  faith  and  for  value. 

A  trustee  cannot,  under  a  power  to  buy,  sell  to  himself  as 
trustee  property  which  is  owned  by  him  as  an  individual  dur- 
ing the  existence  of  the  fiduciary  relation.  The  burden  of  proof 
to  show  that  such  a  sale  was  made  honajide,  and  that  no  unfair 
advantage  was  taken  of  the  confidence  reposed  in  him,  is  upon 
him.^ 

Under  the  presumption  that  every  person  who  has  a  duty  to 
perform  will  do  properly  what  he  is  bound  to  do,  it  will  be  pre- 
sumed from  circumstances  or  from  silence  that  trustees  have 
executed  a  conveyance,  or  that  they  have  properly  performed 
other  duties  in  conformity  with  the  trust.  Ko  particular  period 
of  time  is  required  to  create  this  presumption.  Though  twenty 
and  thirty  years  have  in  some  cases  been  mentioned,  in  others 
a  much  shorter  period  has  sufficed.^ 

§  790.  The  liability  of  trustees  for  tlie  iuvestineiit  of  per- 
sonal property  in  trust. —  A  trustee  must  follow  very  closely 
any  express  directions  which  are  contained  in  the  will,  regu- 
lating the  investment  of  the  personal  property  which  composes 
a  part  of  the  trust  fund.'  If  the  trustee  shall  negligently  per- 
mit money  to  remain  in  a  bank,  when,  by  withdrawing  it  and 
re-investing  it  in  proper  securities,  he  might  have  secured  a 
larger  income  with  equal  safety  to  the  principal,  he  will  be 
liable  to  the  beneficiary  for  the  loss  of  income  incurred.*     If 

parte  Reynolds,  5  Ves.  707;  Hall  v.  ^Treves  v.  Townshend.  1  Bio.  C.  C. 

Hallet,  1  Cox,  134.  384;  Browne  v.  Southuusc,  3  Bro.  C. 

1  James    v.    James,    55    Ala.    525;  C.  107;  Franklin  v.  Frith,  3  Bro.  C.C. 

Munn  V.  Berjijes,  70  111.  004;  Ili^gins  433;  Browne  v.  ISIonlKoinory,  IH  Ahu 

V.  Ciirtiss,  82  III.  28;  Smith  v.  How-  353;  Bemmerly  v.  WoodwanI,  57  Pac. 

lett,  51  N.  Y.  Supi). 'JIO,  2'J  App.  Div.  K.   501   (Cal.,  1H<){));    Moor*)   v.    Bea- 

\H2.  clianip,  4  B.  Moii.  (Ky.)  71;  Nelson  v. 

-Mathews  v.  Wanl,   10  fJill  &  J.  Bank,  27   M-l.  53;  Carr   v.  Lainl,  27 

<M(1.)  442;  M<K>n' V.  Jackson,  4  Wcn<l.  Miss.   511;  K'nowKon   v.   Banllcy.  17 

(N.    Y.)   59;    Smith    v.    Molntirn,   H3  N.  H.  r^M;  Jacob  v.  Kmmilt.  11  I'ai^o 

Fed.  K.  450:  JackK<jn  v.  SchaulM-r,  7  (N.  Y.),  112;  (irothc's  Appeal,  135  Pa. 

Cow.(N.  Y.)  187,  200:  Jackson  V.  Mats-  SI.  5h.-,.  20  W.  N.  U.  205,  2'.t    All.  K'. 

<lorf,  11  Johns.  (N.  Y.)  01,  07;  (i(x>d-  105h.     When-   triiKtees   fail  to   kee|) 

title  V.  Jonrw,  7  T.  It  43,  45;  l)oo  v.  (he  liimls  in  trust  properly  invested, 

8ylx)m,  7  T.  K.  2;   Kn^land  v.  Slaile,  Iml    min^^le   Ihem   with   Iheir  own, 

4  T.  li.  082.  and    occasionally   draw     Ihcm    fnnii 

'S«ie  an/c,  5  479  et  Hcq.  the   hardi    fc^r   their  own    purposes, 


ll-i-t  LAW    OF    WILLS.  [§  790. 

the  trustees  comply,  in  a  reasonably  careful  mamur,  with  the 
directions  of  the  will  as  to  the  mode  of  investing  the  trust 
fund,  thev  are  not  personally  liable  in  case  the  property  is  lost. 

"Where  the  trustee  is  directed  by  the  testator,  in  general  lan- 
guage, to  keep  the  estate  invested,  or  where  the  will  is  silent 
as  to  the  mode  of  investment,  the  trustee  is  expected  to  exercise 
the  greatest  care  in  investing  and  re-investing  the  funds.  He  is 
not  only  required  to  do  what  a  reasonably  cautious  man  would 
do  in  investing  his  own  money,  but  he  must  employ  the  highest 
jpossihle  degree  of  care}  In  England,  by  statute,^  trustees  are 
now  permitted  to  invest  trust  funds  upon  real  securities  and  in 
stock  of  the  Bank  of  England  or  Ireland,  or  in  East  India 
stock ;  and  in  the  United  States  it  is  usually  prescribed  by  stat- 
ute that  trust  funds  may  be  invested  in  government,  state  or 
specified  municipal  bonds,  or  in  first-mortgage  loans  on  im- 
proved real  estate.  Independently  of  these  statutes  equity 
does  not  recognize  any  securities  as  a  proper  investment  for 
trust  funds  except  government  loans,  as  the  three  per  cent,  con- 
sols in  England,'  and,  in  the  United  States,  government  bonds 
and  first-mortgage  loans  on  productive  real  estate.'* 

But  in  recent  times,  owino;  to  the  laro^e  amount  of  trust  funds 
requiring  investment,  the  relatively  limited  amount  of  such  se- 
curities that  are  to  be  found,  and  the  extremely  low  rate  of 
interest  which  is  paid  upon  them,  a  wider  latitude  in  the  in- 
vestment of  trust  funds  has  been  permitted  to  trustees  by  stat- 
ute, A  trustee  may  now,  in  many  instances,  invest  in  particular 
municipal  securities,  as  in  the  bonds  of  the  more  prominent  and 

they  will  be  charged  with  compound  ward,  2  S.  C.  239;  Brown  v.  Litton,  1 

interest.     Bemmerly    v.  Woodward  Peere  Wms.  141;  Pocock  v.  Reilding- 

(Cal,  1899),  57  Pac.  R.  561.  ton,  5  Ves.  800;  Knight   v.  Earl  of 

1  In  re  Smith  (1896),  1  Ch.  71.  Plymouth,  1  Dick.  126.     The  weight 

-Lord  St.  Leonard's  Act,  22  &  23  of  the  English  cases  is  against  the 

Vict.,  ch.  35.  text.     Norbury  v.  Norbury,  4  ]\ra(l(l. 

3Trafford   v.  Boehm,   3   Atk.  444;  191;  Widdowson  v.  Duck,  2  Mer.  494; 

Caldecott  v.  Caldecott,  4  :Madd.  189.  Ex  parte  Calthorpe,  1  Cox,  192.     A 

*  Wilson  V.  Staats,  32  N.  J.  Eq.  523;  purcliase  of  government  bonds  of  the 

In  re  Craven,  43  N.  J.  Eq.  416,  5  Atl.  Confederate  States  of  America  has 

R.  816:   Miller  v.  Procter,   20  Ohio,  been  decided  to  have  been  an   im- 

444;  Gilbert  v.  Kolb,  85  Md.  627,  37  proper  investment  for  trust  funds. 

AtL  R.  423:  Denike  v.  Harrison,  84  Fergusoa  v.  Epes,  77  Va.  499;  Sliarpe 

N.  Y.  89;  Marton  v.  Adams,  1  Strob.  v.  Rockwood,   78  Va.  24;    Dietz    v. 

Eq.  (S.  C.)  72;  Eckford  v.  De  Kay,  8  Mitchell,  12 Heisk.(Tenn.) 676;  Cocker 

Paige  (N.  Y.),  89;   Mathews  v.  Hey-  v.  French,  73  N.  C.  420. 


§   790.]  TESTAMF.XTAKY    USES,  TEUST    ESTATES,  ETC.  1145 

"wealthier  cities.  But  in  no  case  will  lie  be  relieved  from  a  full 
responsibility  for  all  loss  where  he  loans  trust  money  upon 
mere  personal  securities,  unless  he  is  expressly  permitted  to  do 
so  by  the  will,^  or  invests  them  in  the  stocks  and  bonds  of  pri- 
vate corporations.^  The  trustee  who,  vrithout  authority,  invests 
trust  funds  in  personal  securities  at  a  loss  is  not  excused  by  the 
fact  that  the  testator  had  been  accustomed  to  loan  money  ta 
the  same  person  on  similar  security.  For  the  trustee  is  not 
dealing  with  his  own,  but  with  the  property  of  others  to  whom 
the  testator  has  been  o-cnerous.'  The  fact  that  a  hio-her  rate 
of  interest  will  be  realized  by  a  loan  on  a  promissory  note,  or 
that  the  risk  of  loss  is  diminished  by  the  personal  obligation 
being  jointly  executed  by  two  or  more,  or  with  responsible  se- 
curities,^ is  not  material  to  justify  the  act  of  the  trustee. 

The  testator  may  confer  a  power  to  invest  in  or  loan  money 
upon  personal  securities.  Such  investments  are  never  favored 
in  equity,  and  a  power  of  investment  couched  in  general  terms 
or  a  direction  to  invest,  leaving  the  character  of  the  investment 
to  the  discretion  of  the  trustee;^  as  when,  for  example,  the 
trustee  is  permitted  to  invest  the  funds  "in  such  manner  as  he 
shall  deem  best  for  all  concerned," "  or  where  he  has  full  power 
to  "  invest  in  any  securities  whatever,"^  does  not  give  power  to 
loan  money  on  personal  securities.  An  express  power  to  invest 
money  upon  personal  securities  docs  not  empower  a  trustee  to 

>  Hunt  V.  Gontrum,  80  Md.  04.  :J0  31   N.  II.  S")'?;  Adair  v.  Brimmer,  7-4 

Atl.  K.  0-20;  Clark  v.  Garlield.  8  Allen  N.  Y.  5:39;  King  v.  Talbot.  10  N.  Y.  76; 

(Mass.).  827:  DulTord  v.  Smith,  46  N.  English  v.  Mclntyre,  51  N.  Y.  S.  910, 

J.  Eq.  216,  18  Atl.  R.  10r)2:  In  re  Blau-  29  App.  Div.  182;  Worrell's  Ai)peal,  0 

velt,  20  N.  Y.  Supp.  119,  2  Con.  Sur.  Pa.  St.  nOS;  In  re  Ketdtas.  1  C;on.  Sur. 

4.')8;  Jones  v.  Jones.  50   Ilun,  GO:},  2  468.  6  N.  Y.  S.  668.     Comjiaro  Lovell 

N.  Y.  S.  844;  Tucker  v.  Tucker,  :j:5  N.  v.  Minot.  20  Tick.  (.Mas.s.)  116;  Ilar- 

.1.  Eri.  2:55;  Wilson's  Appeal  (F'a..  1H95),  vard  College  v.  Emory,  9  I'ick.  (Mass.) 

9  Atl.  It.  47:i;  Nyce's  Apix-al.  5  Watts  446. 

&  S.  (IV)  254.  258;  J.dmson's  ApiM-al,  ^'Styles  v.  (Juy.  1  Mac.  it  (i.  42:{. 

4:{  Piu  St.  471 :  SfKiar  v.  Spear,  9  lii<;li.  *  Walls  v.  (Jirdleslone.  6  Heav.  188. 

Ec\.  (S.  C.)  184;  Simmons  v.  Oliver,  74  »  I'ocock  v.  lieddingtrm.  5  Ves.  704; 

Wis.  m'.l  4:{  N.  W.  R  561;  Terry  v.  Mills  v.  Oshorne,  7  Sim. ;«);  W.-slover 

Terry,  I'irifli.    Tree.  Ch.   27:};  Hyder  v.   (Jhapman,  1    Coll.   177;   AltiTiny- 

V.  Hickerlon,  :{  S\v.  HO;  Vigras  v.  Hin-  (ieneral  v.   Iligham,  2  \.  it   C.  C.  ('. 

field,:*.  Madd.62:  Walker  v.  Synjonds,  6:!  I. 

«  SwariHton,  6:}.  '•  Mai  locks   v.    Muidlc.n,   21   All.  1{. 

■^Matt<K-ks    V.  .Moullon.  21   All.   H.  1005,  sj  Mi-.  545. 

1004,84  .Md.  515;  Kiii)l.;ill  v.  lieddiug.  ■  Lewis  v.  Noiih.s,  L.  It  8  Cli.  I>.  591. 


1140  LAW   OF   WILLS.  [§  T90. 

purcliaso  bis  own  promissory  note,  or  one  executed  by  liis  co- 
trustee,^ or  by  one  of  the  trustee's  relations,  or  Ijy  a  member 
of  his  family.-  The  language  of  tlie  grant  of  power  to  loan, 
trust  funds  on  personal  securities  will  be  very  strictly  construed. 
If  the  consent  of  a  beneficiary  or  of  a  co-trustee  is  required  to 
be  procured  as  a  necessary  preliminary  to  the  valid  exercise  of 
the  power,  an  investment  without  it  will  be  ultra  vires,  and  the 
trustee  will  be  liable  for  a  resulting  loss.'  And  though  the 
trustee  may  be  expressly  authorized  by  the  will  to  loan  money 
to  A.  upon  his  note  or  bond,  he  ought  not  to  do  so  if  A.,  who 
was  perfectly  solvent  at  the  death  of  the  testator,  has  subse- 
quently become  Insolvent  so  that  loaning  him  money  would  be 
equivalent  to  the  loss  of  it.'*  A  power  to  loan  on  personal  se- 
curity is  not  exhausted  b}^  one  occasion  of  its  exercise.  It  may 
be  exercised  as  frequently  as  a  favorable  opportunity  offers,  but 
always  within  the  limits  laid  down  by  the  testator,  and  under 
circumstances  which  commend  its  exercise  to  the  sound  discre- 
tion of  the  trustee.  A  power  giving  a  trustee  the  widest  dis- 
cretion in  the  investment  of  trust  funds  will  not  authorize  him 
to  employ  the  fund  in  trade  or  for  speculation  generall}'',  except 
tit  the  risk  of  the  trustee.'^ 

We  have  seen  that  in  some  states  trustees  may  invest  trust 
money  in  first-mortgage  loans  upon  real  property.  A  trustee 
who  is  authorized,  either  by  the  will  or  by  the  statute,  to  invest 
in  either  first  or  second  mortgages  must  use  the  ordinary  care 
of  a  prudent  man  in  doing  so.  He  must  see  to  it  that  the  value 
of  the  landed  property  exceeds  the  sum  loaned  upon  it,  so  that 
in  case  a  sale  on  foreclosure  becomes  necessary  the  equity  of 
redemption  will  be  sufficient,  aside  from  a  depreciation  in  the 
value  of  the  property,  which  no  careful  person  could  foresee. 
X  trustee  ought  not  to  loan  more  than  two-thirds  of  the  value 
of  permanent  property,  as  of  land  aside  from  buildings;  while 
on  the  latter,  no  more  than  one-half  the  original  value  should 
be  advanced.  For  while  the  value  of  land  may  diminish,  the 
structures  upon  it  are  not  only  subject  to  depreciation  in  value, 

iPaddon  v.  Richardson,  7  De  Gex,  535;  Greenham  v.  Gibson,  10  Bing. 

JIac.  &  G.  563;  Forbes  v.  Ross,  2  Bro.  363,  374. 

C.  C.  430.  4  Boss  V.  Godsall,  1  Y.  &  C.  C.  C.  617. 

2  Langton  t.  Olivant,  G.  Cooper.  63.  5  Cock  v.  Goodfellow,  10  Madd.  489. 

3  Cocker  v.  Quayle,  1  Russ.  &  Mj-. 


§  790.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  llttT 

but  to  deterioration  and  dilapidation  by  reason  of  the  lapse  of 
time  as  well.^ 

If  the  trustee  shall  exercise  ordinary  diligence  in  ascertain- 
ing the  value  of  the  property,  he  will  not  be  responsible  for  a 
deficiency  resulting  from  a  depreciation  which  no  person  could 
foresee.  He  has  a  right  to  rely  upon  the  opinions  of  competent 
surveyors  and  real-estate  dealers,  who  are  disinterested  parties, 
as  to  the  value  of  the  property  when  he  advances  the  money; 
but  he  has  no  right  to  rely  upon  the  opinion  of  value  furnished 
either  by  the  mortgagor  or  by  his  agent.- 

A  trustee  who  ventures  to  loan  on  second  morto-a^e  must 
look  very  closely  into  tlie  value  of  the  property,  for  he  will  be 
personally  liable  for  a  deficiency  upon  foreclosure  unless  he 
purchases  in  the  equity.'  And  a  trustee,  under  a  "  power  to 
invest  the  trust  funds  upon  real  securities,"  including  mort- 
gages by  deposit  of  title  deeds,  has  no  right  to  buy  in  the  equity 
of  redemption  from  the  owner  in  order  to  protect  a  second 
mortgage  which  he  has  taken  upon  the  property,  and  he  will 
be  liable  for  any  loss  resulting  therefrom.* 

A  trustee  Avho  has  invested  in  government  or  other  bonds  at 
a  premium  is  not  responsible  for  a  loss  of  premium  from  their 
redemption  by  the  government  before  maturity,  where  it  was 
considered  by  careful  investors  that  the  bonds  Avould  not  bo 
paid  until  they  became  due.*  If  the  trustee  neglect  to  follow 
the  directions  of  the  will  for  the  investment  of  money  in  par- 
ticular securities,  he  is  liable  at  the  option  of  the  beneficiary 
either  to  what  would  have  been  made  in  income  by  such  in- 
vestment or  to  what  has  been  actually  received,  or  the  court 
may  order  the  trustee  to  be,  charged  with  compound  interest 
on  the  wiiole  amount.  "Where  the  will  is  silent  as  to  the  char- 
acter of  the  investment,  tiio  fact  tiiat  certain  securities  wer(i 
bouirht  and  held  l>v  tiio  testator  mav  recomiiieiid  them  to  the 
trustee  where  they  are  ordinarily  regarded  as  a  safe  investmenl." 

1  Sticknf-y  v.  ScwcU,  1  My.  &  Cr.  0;  R.  42.1.    Coiniwim  Drosicr  v.  Hrcri'ton, 

In  re  Ooilfn-y,  (ioilfn-y  v.  Kiiiilkncr,  l."»  lii-uv.  221;  r'it/.g«Tiil(i  v.  I'ringlo, 

I^  li.  2:J  Cli.  Div.  48:{;  In  ro  HIiiuvolt,  2  Moli.  rM. 

2  Con.  Siir.  4r,H,  20  N.  Y.  S.  119.  <  Wurman  v.  Woini.in,  I..  R  Ul  C'li. 

2JonfH  V.  L«!wiH, ;{  Do  Hex  <fe  Stnalc?,  Div.  2!K». 

471;  Norris  v.  WriKlit.  11   liciiv.  2!M.  »  Hch-'s  ApiM-al,    i:!J  I'a.  S(.  171»,  11) 

801;  Sutton   v.    WiM.-r.  L.  It.   12  i:.|.  Atl.  H.  :UVi. 

873.  •'  k.'fljliiini  V.  N.-wloii,  I  Atl.  li.  758, 

»  Gilbiirt  V.  Kolb,  Hr>  M<1.  027,  :J7  Atl.  i:.  \L  I.  ;i:.'l. 


1148  LAW    OF    WILLS.  [§  791. 

§  791.  The  liability  of  a  purchaser  for  the  application  of 
trust  property. —  Where  real  property  is  devised  in  trust  for 
sale  and  for  the  payment  of  debts  fjeneralhj  out  of  the  proceeds, 
and  no  particular  debts  are  by  the  will  made  a  direct  charge 
upon,  the  land  or  its  proceeds,  a  purchaser  from  the  trustee  is 
not  bound  to  see  that  a  proper  application  of  the  purchase- 
money  to  pay  the  debts  is  made  by  him.^  And  generally  a 
purchaser  in  good  faith  and  for  value,  not  having  actual  notice 
of  the  misapplication  of  the  purchase-money  by  the  trustee,  or 
not  knowing  of  the  failure  of  the  trustee  to  execute  a  general 
trust  in  conformity  with  the  limitations  contained  in  the  instru- 
ment creating  the  trust,  takes  the  property  wliolly  discharged 
of  the  trust.-  The  same  rule  is  applied  to  a  trust  to  pay  legacies 
and  annuities  generally  out  of  the  proceeds  of  land  directed  to 
be  sold  for  that  purpose.'  This  is  the  rule  where  land  is  sub- 
jected to  a  general  charge.  But  if  the  land  is  devised  in  trust 
to  be  sold  and  the  proceeds  devoted  to  the  payment  of  a  ^>«7'- 
ticidar  debt,  or  if  the  trust  is  for  a  jparticular  purpose^  the  pur- 
chaser is  then  bound  to  see  that  the  purchase-money  is  applied 
to  the  payment  of  that  debt  or  to  the  particular  purpose  speci- 
fied.* 

If  the  land  in  trust  is  specifically  charged  with  the  payment 
of  debts  and  legacies  by  the  will,  the  charge  is  a  lien  upon  it 
Avhich  the  purchaser  is  bound  to  notice,  and  he  therefore  takes 
subject  to  the  trust.'  "Where  the  purchaser  has  actual  notice  of 
the  intention  of  the  trustee  to  misapply  the  purchase-money,  i.  e., 

1  Potter    V.    Gardner,    12    Wlieat.  25  X.  J.  Eq.  35;  Gardner  v.  Gardner, 

(U.  S.)  498.  3  Mason  C.  C.  218;  Bowling  v.  Hud- 

-  Ellison  V.  Moses,  95  Ala.  221 ;  War-  son,  17  Beav.  248;  Page  v.  Adam.  4 

nock  V.  Harlow,  96  Cal.  293,  31  Pac.  Beav.  269;  Jenkins  v.  Hiles,  6  Ves. 

R  166;  Seldner  v.  McCreery,  75  Md.  654. 

287,  23  Atl.  R.  641;  Andrews  t.  Spar-  ^Bugbee  v.  Sargent,  23   Me.   269, 

hawk,    13    Pick.    (Mass.)    393,    401;  271;  Swasey  v.  Little,  7  Pick.  (Mass.) 

Laurens  V.  Lucas,  6  Rich.  (S.  C.)  Eq.  296,    300;    McWaid    v.    Blair    Bank 

217:  Bailey  v.  Colton,  25  S.  C.  436;  (Neb.,  1899),  79  N.  W.  R.  620;  Leavitt 

Bank  v.  Smith,  17  R.  L  244,  24  AtL  R.  v.  Wooster,  14  N.  H.  550;  Harrison  v. 

273;  Young  v.  Mutual  Life  Ins.  Co.  Fly,  7  Paige  (N.  Y.),  421;  Rogers  v. 

(Tenn.,  1898).  47  S.  W.  R.  428;  Davis  Ross,  4  Johns.  Ch.  (N.  Y.)404;  Hoover 

V.  Christian, 15  Gratt.(Va.)  11;  Haaser  v.   Hoover,  5  Pa.  St.  351;    Binks  v. 

V.  Shaw,  5  Ired.  (N.  C.)  Eq.  357.  Rokeby,    2    Madd.    238;    Smith    v. 

3  Sims  V.  Lively,  14  B.  Mon.  (Ky.)  Guyon,  1  Bro.  C.  C.  186. 

435;  Andrews  v.  Sparliawk.  13  Pick.  ^See  §  403. 
(Mass.)  393,  401;  Dewey  v.  Ruggles, 


§  791.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  1140 

if  he  in  fact  hioivs  that  the  trustee,  in  conveying  the  land,  is 
acting  in  excess  of  his  powers,  the  purchaser  will  take  the  prop- 
erty subject  to  a  constructive  trust  in  favor  of  the  original 
beneficiaries.^  A  i')urchaser  from  a  testamentary  trustee  is  af- 
fected with  record  notice  of  his  duties  and  powers  and  of  the 
purposes  of  the  trust  as  they  are  set  out  in  the  will.  But  a  pur- 
chaser in  good  faith  from  the  purchaser  from  the  trustee  does 
not  have  record  notice  of  these  facts  sufficient  to  subject  the 
property,  when  in  his  hands,  to  a  constructive  trust.- 

The  law  recognizes  a  great  difference  between  the  liability 
of  a  purchaser  or  pledgee  of  personal  property  who  takes  from 
an  executor  and  one  who  takes  from  a  trustee.  The  owner- 
ship of  the  personal  propert}?-  is  vested  in  an  executor  for  the 
sole 2)U'r2)ose  of  administering  the  estate  of  the  testator;  and,  for 
this  purpose,  he  must  have  the  incidental  power  of  disposing 
of  the  personal  assets  in  his  hands,  either  by  sale  or  by  pledge. 
On  the  other  hand,  the  ownership  of  personal  property  by  a 
trustee  '\%for  custody  and  not  for  administration.  The  executor 
on  his  appointment  is  at  once  vested  with  the  ownership  of  all 
the  personal  property  disposed  of  h^  the  will.  In  modern  times 
he  is  regarded  as  to  such  ownership  merely  as  a  5'?/«.y/-trustee, 
for  carrying  out  the  purposes  of  the  will,  the  payment  of  debts,' 
and  the  settlement  of  the  estate.  He  has  the  ownership  of  the 
personal  property  only  so  far  as  it  is  necessary  for  him  to  have 
it  to  enable  him  to  effect  the  purposes  of  the  will  as  they  ap- 
pear upon  its  face.*     The  executor  slioukl,  as  soon  as  possible, 

1  Williamson  V.  Morton,  2  Md.  Ch.  fraudulently  disposed   of  the  trust 

94.102;  Shaw  v.  Spencer,  100  Mass.  property  contrary  to  the  terms  of  the 

3S2,  :W9;  Otis  v.  Otis,  107  Mass.  24",,  trust,  the  beneficiaries,  on  the  ternii- 

45  N.  R  R,  737;  Stark  v.  Olsen,  44  nation  of  the  trust,  are  entitled,  in  a 

Net).  040,  03  N.  W.  K.  37;  Turner  v.  court  of  ecpiity,  to  have  tiie  (;onvey- 

Hoyle,  Si'i  Mo.  337,  8  S.  W.  It.  lv)7;  ancesset  aside,  and  a  partition  t>f  the 

Nautnan  v.  Weidnian  (Pa.,  1H',)8),  37  premises  hetwcM^n  thein.    Lehnard  v. 

Atl.  R.  803;  I'-oniar  v.  (iist,  2",  S.  C.  Specht,  WS:  N.  E.  H.  31.%  ISO  III.  208. 
340;  Clyde  v.  Simpson,  4  Oliio  St.  44ri;         3  Ante,  ^  ((3i)  ot  se»i. 
McCown  V.  Terrell.  U  Tex.  Civ.  Ajip.         •« Chandler  v.  Clhandler,  87  Ala.  30, 

«0,21iS.  W.  Ii.484;  Ilanrick  v.  Ourley  0  S.  11.  IW;  Carti-r  v.  Hank,  71   Me. 

(Tex.,  18{i9),48S.  W.  K.004;  Claih(,rno  448,440,  1  Am.  Pro.  K.  1!)3;  Dalton  v. 

V.  Holland,  88  Va.  1010,   14  S.   K   U.  Dalton,  51  Me.  171 ;  llutchins  v.  Pjink, 

IM.*.;  Smfx>t  v.  liicliards,  8  Tex.  Civ.  12  M.-t.  (Mass.)  421,  432.  43.-»;  Shirley 

App.  140,  27  S.  W.  U.  007.  v.  ll.-alds,  34  N.  11.  407,  411:  Peterson 

•^  Young  V.  Weed,  l.'»l  Pa.  St.  310,  32  v.  lianU,  32  N.  Y.  21,  41-47;  Furrier  v. 

W.  N.  C.  207.     Where  a  trustee  has  I'.'iri.r,  L.  K.  II  Ir.  50. 


1150  LAW    OF    MILLS.  [§  791. 

sell  all  personal  proporty  which  is  not  specifically  bequeathed, 
in  oi-(lor  that  he  may,  out  of  the  proceeds,  pay  the  debts  at  once, 
and  the  general  legacies,  lie  may  also,  if  it  is  in  his  opinion 
necessary  for  the  protection  of  the  estate,  unless  he  is  expressly 
prohibited  by  the  will,  mortgage  or  pledge  any  of  the  personal 
property  which  is  not  specifically  disposed  of.^  It  follows  from 
this  that  a  purchaser  or  a  pledgee  of  negotiable  paper,  which 
he  has  received  from  an  executor,  is  not  responsible  for  the  mis- 
application of  the  proceeds  if  the  purchaser  is  not  actually  a 
party  to  the  fraud  of  the  executor,  and  if  he  docs  not  hioio  that 
the  latter  is  misappJijing  or  intends  to  misapply  the  funds.-  But 
where  the  person  dealing  with  the  executor  knoics,  or  has  Tea- 
sonahle  grounds  for  helieving,  that  the  executor  means  to  mis- 
apply the  mone}'',  or  if  he  is  knowingly,  in  the  transaction  in 
Avhich  both  are  engaged,  misappropriating  the  proceeds,  he  will 
be  responsible  to  those  who  are  beneficially  interested  in  the 
will.^  Thus,  if  the  party  to  whom  the  personal  property  of  the 
estate  has  been  conveyed  by  sale  or  by  pledge  has  actual  hiowl- 
edge  that  the  testator  left  no  debts  for  which  a  sale  or  a  pledge 
was  necessary^  the  presumption  of  fraud  is  almost  conclusive. 
And  when,  on  account  of  the  relation  of  the  purchaser  to  the 
executor  or  to  the  estate,  he  knows  that  the  executor  is  actually 
paying  or  securing  his  own  indebtedness,  and  not  that  of  the 

1  Carter  v.  Bank,  71  Me.  448,  450;  C.  1;   Scott  v.   Tyler,  2   Dick.   725; 

McLeod  V.  Drumniond,  17  Ves.  154,  Iluuible  v.  Hill,  2  Vern.  444. 

1G3;  Andrew  v.  Wrigley,  4  Bro.  C.  C.  3  in  re  McComb,  117  N.  Y.  378,  23 

125,  139;  Earl  v.  Rigden,  L.  R.  5  Ch.  N.  E.  R.  1070;  Clark  v.  Coe,  52  Hun, 

App.  663;  3  Redf.  Wills,  cb.  8,  §  32;  2  379,  5  N.  Y.  S.  243;  Mercantile  Trust 

■VVilliams,ExTS,p.  1001:  Jelkev.Gold-  Co.  v.  Weld,  85  Md.  685,  36  Atl.  R. 

smitli  (Ohio,  1898),  40  N.  E.  R.  167.  445;  Horton  v.  Jack  (Cal.,  1897),  37 

An  executor  who  is  directed  to  carry  Pac.  R.  652;  Lowry  v.  Bank,  Taney, 

on  the  testator's  business   has  the  C.  C.  310,  330;  Carter  v.  Manu.  Nat. 

ix)wer  to  incur  debts  for  that  pur-  Bank,   71    Me.   448,   452;    Gerger  v. 

pose.     Weddrop  v.  Wood,  26  Atl.  R.  Jones,    16  How.   (U.   S.)  30,   37,   38; 

375,  154  Pa.  St.  307;  Palmer  v.  Moore,  Ewer  v.  Corbet,  2  P.  W.  148;  McLeod 

82  Ga.  177,  8  S.  E.  R.  180.  v.  Druminond,  17  Ves.  153;  Drohan 

2Hutchins  v.  Bank,  12  Met.  (Mass.)  v.  Drohan,  1  Ba.  &  Be.  185;  CoUinson 

421,  423;  Field  v.  Schieffelin,  7  Ch.  v.   Lister,  7  De  Gex,  M.  &  G.  633; 

(N.  Y.)  150, 100;  Berry  v.  Gibbs.  L.  R.  Stronghill  v.  Anstey,  1  De  Gex,  M.  & 

8  Ch.  App.  747;  Bonney  v.  Ridgard,  G.  635;  Scott  v.  Tyler,  2  Dick.  725; 

1  Cox,  145;  Keane  v.  Roberts,  4  Mad.  Rice  v.  Gordon,  11  Beav.  265;  Stokes 

332,  357;  Andrew  v.  Wrigley,  4  Bro.  v.  Prance,  67  Law  Ch.  69.  1  Ch.  212, 

C.  C.  125;  Gray  v.  Johnstone,  3  H.  L.  77  L.  T.  (N.  S.)  595,  46  W.  C.   183; 

Hall  V.  Andrews,  27  L.  T.  (N.  S.)  195. 


§   792.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  1101 

testator,  as  would  be  the  case  where  a  banker  having  on  deposit 
securities  belonging  to  the  estate  on  the  request  of  the  exec- 
utor applies  a  portion  of  them  to  pay  a  debt  due  from  the  ex- 
ecutor individualh"  to  the  banker,  he  is  estopped  from  asserting 
that  he  is  not  liable  to  the  next  of  kin  for  the  misapplication 
of  the  assets  of  the  estate.  Such  knowledge  is  enough  to  raise 
a  conclusive  presumption  of  fraud  on  the  part  of  a  purchaser, 
for  he  cannot  shut  his  eyes  to  the  actions  of  the  executor  savor- 
ing so  strongly  of  fraud.^ 

§  792.  Definition  of  a  precatory  trust. —  A  trust  is  preca- 
tory where  property'  is  given  to  a  person  absolutely  by  the  will, 
and  he  is  entreated^  admonished^  recommended  or  desired  to  dis- 
jpose  of  all  or  of  a  jportion  of  that  j^rojtei'ty  in  favor  of  another 
person  mentioned^  and  the  language  of  the  testator  from  the 
whole  will  seems  to  be  imperative,  and  leaves  no  discretion  in 
the  legatee  except  as  to  the  quantum  and  mode  of  conferring 
the  benefit.  To  create  a  trust,  and  in  order  to  make  precatory 
words  operative,  it  must  appear  that  the  estate  vested  in  the 
first  taker  is  not  absolute,  nor  the  power  of  disposal  unre- 
stricted. It  must  also  appear  that  the  subject  of  the  devise, 
and  the  devisees  therein,  are  both  certain,  and  that  the  trust  is 
definite;  and  that  the  language,  as  gathered  from  the  whole 
context,  is  intended  to  be  imperative,  and  not  a  mere  matter  of 

1  Sliaw  V.  Spencer,  100  ]\Iass.  382,  been  informed  of  the  existence  of  a 

392;  Field  V.  Scliieffelin,  7  Julins.  Cli.  will  under  whicli  tlie  trustee  must 

(N.  Y.)  150,  ICO;  Petrie  v.  Clark,  11  act,  continues    chargeable    with    a 

Ser.  &  R  (Pa.)  77;  Hill  v.  Simpson,  knowledge  of  its  terms.     Marburyv. 

7  Ves.  ir)2;  Wilson  v.  Moore,  1  M vines  Ehleu,  72  Md.  206, 19  Atl.  R.  048.    But 

&  K.  337;  Walker  v.  Taylor,  4  Law  it  seems  that  where  tlie  executor  is  a 

Times,  Siri;  Pannell  v.  Hurley,  2  Coll.  specific  legatee  of  a  security  jtledgeil 

211;  Kodenham  V.  II(jskins,  2  De  Gex,  or  sold  by  Iiiin  to  secure  or  pay  Ids 

M.  &  G.  903;  In  re  Tan<|ucray,  L.  K.  own  debt  (Taylor  v.  iiawkius,  8  Vos. 

t.'0  Ch.  Div.  40",;  In  re  Whistler,  Ij.  R.  209),  and  iierhajjs  where  he   is   the 

3")  Ch.  D.  5(51;  In  re  Venn,  8  Rep.  220  solo  residuary  legatee,  or  even  one  of 

(1894),  2  VA\.  101.    Wh(!re  stock  stand-  sevc^ral  residuary  legatees,  frauil  will 

ing  in  the  name  of  the  testator  is  not  bo  jiresumed   in  the  absence  of 

tninsferred  by  his   executor  to  the  a<-tual  knowi<!(lge  on  the  part  of  the 

trustee  n.-imed  in  tlie  will,  and  after-  traiisfcTeo  that  tluj  debts  of  the  tcs- 

wiirds  it  is  frauiluhjiitly  transf(;rred  tutor  were  still  unpaid.     Nugent  v. 

by   the   truHte.%    the   corjioration   Ih  (lilford,  1  Atk.  403;  Mead  v.  Orrery, 

chargeable  with   knowledge   of  tho  3  Atk.  235;  Taylor  v.  Hawkins,  8  Vos. 

limited  iK>werH  of  the  truMtec,  despite  209;    Crane  v.    Drake.    2   Verii.   101; 

tim  l;i|>se  of  time  b«-twcen  tli«)  truMH-  Mcl.eod  v.  Drummond.  17  Ves.  153, 

ferH.     Tliu  coriforaliun,  having  once  103. 


115 


LAW    OF    "WILLS. 


[§  T93. 


discretion.^  That  the  subject  of  the  precatory  trust,  as  is  the 
rule  with  all  trusts,  must  be  certain,  cannot  be  doubted.  But 
if  the  intention  certainly  appears  that  th'^  beneficiary  is  in  any 
event  to  have  someiJdmj  substantial,  the  fact  that  he  may  re- 
ceive more  or  less  according  to  the  judgment  of  the  legatee  is 
not  material.^ 

§  793.  Particular  examples  of  language  which  is  testa- 
mentary and  not  precatory  merely. —  A  gift  followed  by 
language  desiring  the  legatee  "  to  give "  to  certain  persons 
who   are   then    mentioned,*   or  recommending  *   or   "  request- 


1  Hence,  where  a  testator,  who  has 
derived  all  his  property  from  his 
wife,  in  his  will  gives  her  the  "  re- 
mainder of  his  whole  estate,  .  »  . 
believing  she  will  do  justice  between 
her  relatives  and  mine  at  her  death," 
no  trust  is  created  in  favor  of  either 
of  tlie  relatives  of  the  testator  or  in 
favor  of  the  devisee.  Hill  v.  Page 
(Tenn.,  189G),  36  S.  W.  R.  735. 

2  '•  When  i^roperty  is  given  abso- 
lutely to  any  person,  and  tiie  same 
person  is  by  the  giver,  who  has  the 
power  to  command,  recommended 
or  entreated,  or  wished,  to  dispose  of 
that  property  in  favor  of  another, 
the  recommendation,  entreaty  or 
wish  shall  be  held  to  create  a  trust: 
First.  If  the  words  are  so  used  that 
upon  the  whole  they  ovigiit  to  be 
construed  as  imperative.  Second.  If 
the  subject  of  the  recommendation 
or  wish  be  certain;  and  thirdly,  if 
the  objects  or  persons  intended  to 
have  the  benefit  of  the  recommenda- 
tion or  wish  be  also  certain."  Lord 
Langdale,  in  Knight  v.  Knight,  3 
Beav.  172:  S.  C,  11  C.  &  F.  513.  "If 
there  be  a  trust  sufficiently  expressed 
and  capable  of  enforcement,  it  does 
not  disparage,  much  less  defeat  it,  to 
call  it  '  precatory.'  The  question  of 
its  existence  depends,  after  all,  upon 
the  intention  of  the  testator  as  ex- 
pressed by  the  words  he  has  used, 
according  to  their  natural  meaning, 
modified  only  by  the  context  and  the 


situation  and  circumstances  of  the 
testator  when  he  used  them.  On 
the  one  hand,  the  words  may  be 
merely  those  of  suggestion,  counsel 
or  advice,  intended  only  to  influence, 
and  not  to  take  away,  the  discretion 
of  the  legatee  growing  out  of  the 
right  to  use  and  dispose  of  the  prop- 
erty given  as  his  own.  On  the  other 
hand,  the  language  may  be  impera- 
tive in  fact,  though  not  in  form,  con- 
veying the  intention  of  the  testator 
in  words  equivalent  to  a  command, 
and  leaving  to  the  legatee  no  discre- 
tion to  defeat  his  wishes,  although 
there  may  be  a  discretion  to  accom- 
plish them  by  a  choice  of  methods, 
or  even  to  defeat  and  limit  the  ex- 
tent of  the  interest  conferred  upon 
the  beneficiary."  Colton  v.  Colton, 
127  U.  S.  300,  312,  320. 

3  Coburn  v.  Anderson,  131  Mass. 
513;  Mason  v.  Limbi-ey,  cited  Amb. 
4;  Erickson  v.  Willard,  1  N.  H.  217; 
Burt  v.  Herron,  66  Pa.  St.  400;  God- 
frey v.  Godfrey,  11  W.  R.  554,  2  N.  R. 
16;  Foster  v.  Wilson,  38  Pac.  R.  1003. 

4  Webster  v.  Morris.  19  Ves.  656; 
Malim  v.  Keighley,  2  Ves.  Jun.  333, 
529,  539;  Gilbert  v.  Chapin,  19  Conn. 
342.  See  also  Tibbits  v.  Tibbits,  19 
Ves.  656,  where  the  testator  "  recom- 
mended "  his  devisee  to  continue  A. 
in  the  occui^ation  of  a  farm  so  long 
as  A.  managed  it  well  and  paid  rent. 
A  bequest  to  A.  "  recommending  her 
to  give  to  B.  what  she  should  die 


r93.] 


TESTAMENTAKV    USES,  TEUST   ESTATES,  ETC. 


115J 


ing  "  ^  a  legatee  to  dispose  of  the  propert}'-  given  to  him  to  others, 
has  been  held  sufficient  to  create  a  trust  in  favor  of  the  other 
persons.  So,  too,  where  the  testator  gave  a  legacy  "having 
confidence  "  -  in  the  legatee,  or  "  with  full  confidence^''  *  with 
the  utmost  confidence,^  with  impJh-lt  confidence;'  with  the  fullest 
confidence,^  "in  the  belief  "  that,'  "  not  doubting  "  that,-  under 
the  "  firm  conviction  "  that,"  "  trusting,"  ^^  having  "  an  absolute 
assurance  "  that  ^^  the  beneficiary  would  apply  a  portion  of  it 


possessed  of."'  creates  the  executor 
of  A.  a  trustee  where  A.  neglects  to 
carry  out  the  recommendation  of 
the  testator.  Horwood  v.  West,  1 
S.  &  S.  387.  The  English  cases  and 
one  or  two  American  authorities 
have  relied  greatly  upon  the  word 
-•recommend'"  to  create  a  ti'ust. 
They  have  gone  too  far  in  this,  for 
the  primary  signification  of  the  word 
when  it  is  uncontrolled  by  the  con- 
text is  not  mandatory,  but  leaves  a 
large  discretion  to  the  legatee.  The 
most  recent  cases  take  the  stand  that 
recommendatory  language  alone  is 
never  testamentary.  Johnston  v.  Row- 
land, 2  De  Gex  &  S.  256.  In  Ford  v. 
Fowler,3  Beav.  146,the  testator,  while 
bequeatliing  property  to  A.,  "  recom- 
mended that  she  settle  it  for  the 
benefit  of  B."'  and  her  children.  On 
the  death  of  A.  in  the  life-time  of 
tlie  testator  it  was  held  tliat  B.'s 
children  should  receive  tlie  legacy 
becau.se  of  the  trust  in  their  favor. 
So  in  Cholmondeley  v.  Ciiolmonde- 
ley,  14  Sim.  500,  where  the  words 
were  "  earnestly  recommemling  that 
the  legatee  take  measun;s  to  scfcure 
the  property  to  her  chililren  on  lier 
decease."  a  trust  was  construed  to 
Vm;  f-reiited  in  favor  of  tlie  chil<lren. 

1  Ivlrly  v.  llartshorrie.  :M  N.  J.  Kq. 
419;  CfjJtoii  V.  (Joiton,  127  U.  S.  :{00, 
317:  Kiirle  v.  l':;ide,  5  Mu.M.  IIH; 
Shelley  v.  Shelley,  k  R.  «  I::(|.  "iK*. 

-  Dresser  v.  DresKer,  -lO  .Mo.  IH; 
She[)herd  v.  Nottidge,  2  J.  &  II.  70(5. 

^iKnox  v.  Knox.  r,»  Wis.  172-18."): 
Warner  v.  Bates,  IW  Mu.s.s.  274;  Cur- 


nick  V.  Tucker,  L.  R.  17  Eq.  320;  Le 
Marchant  v.  Le  Marchant,  L.  R.  18 
Eq.  414;  Ware  v.  Mallard,  21  L.  J. 
Ch.  355. 

4  Ingram  v.  Fraley,  29  Ga.  553. 

5  Steel  V.  Levisay,  11  Gratt.  (Va.) 
454 

e  Wright  v.  Atkins,  17  Ves.  255; 
Palmer  v.  Simmonds,  2  Drew.  221; 
Gully  V.  Crego.  24  Beav.  185;  Shovel- 
ton  V.  Shovelton,  32  Beav.  143.  Con- 
tra,  Webbs  v.  Wool,  2  Sim.  267; 
Meredith  v.  Heneage,  1  Sim.  542;  In 
re  Adams,  24  Ch.  D.  199. 

^  Van  Adee  v.  Jackson,  35  Vt.  176. 

s  Taylor  v.  George,  2  Ves.  &  Bea. 
378;  Parsons  v.  Baker,  18  Ves,  476; 
Massey  v.  Sherman,  Amb.  520; 
Wynne  v.  Hawkins,  1  Bro.  C.  C.  179; 
IMalone  v.  O'Connor,  2  LI.  &  G.  465. 
In  Parsons  v.  Baker,  18  Ves.  476,  the 
devise  was  to  A.,  "  not  doubting  that 
in  case  he  have  no  child  he  will  give 
it  to  the  female  descendants  of  my 
sister  in  preference  to  any  descend- 
ant of  his  own." 

»  Barnes  v.  Grant.  26  L.  J.  (N.  S.) 
Ch.  92,  2  Jur.  (N.  S.)  1127. 

•"McNal)  V.  Wiiitebread,  17  Beav. 
299;  Irvine  v.  Sullivan.  L.  R.  H  Kq. 
673;  Had!(!y  V.  I!a<lley  (Tciiii.,  1898), 
45  S.  W.  R.  312.  Ill  Baker  v.  Mosloy. 
12  .Jur.  710,  a  trust  was  held  to  have 
been  cir.-iti'ii  bv  (lie  words  '•(rust- 
ing tiiul  be  nnIII  preserve  tlie  same 
Ko  that  on  his  decease  it  will  go  to  " 
certain  jieisotiM  wliosct  names  iin^ 
mentioned. 

"' (;ilj.atri(lc  V.  (.'licleii,  81   M<\    137. 


1154  LAW    OF   WILLS.  [§  793, 

to  the  benefit  of  persons  who  are  mentioned,  it  was  held  that 
these  words  were  imperative  and  testamentary  and  not  preca- 
tory merely. 

And  where  the  testator  stated  that  it  was  his  "  dying  re- 
quest "  that  a  legatee  should  devote  a  portion  of  the  money 
which  was  bequeathed  to  him  to  the  benefit  of  some  third  per- 
son ;  ^  or  the  testator  "  hoped  he  would  do  so ; "  -  or  stated  that 
it  was  his  "wish  and  desire"  that  the  legatee  should  do  so;* 
or  that  it  was  his  "wish  and  will,"^  and  the  testator  required 
and  entreated  him  to  do  so;^  or  the  testator  gave  the  legacy 
"  well  knowing  "  that  the  legatee  would  carry  out  his  instruc- 
tions as  regards  some  third  person,^  it  has  been  held  that  a 
valid  trust  was  created. 

A  devise  to  A.,  and  "  I  advise  him  "  to  settle  it  upon  himself 
and  his  issue,  and  in  default  of  issue  upon  E.  and  his  issue,  con- 
stitutes a  trust  in  favor  of  E.  and  his  issue.^  And  the  words 
attached  to  an  absolute  gift,  "  to  be  disposed  of  in  such  man- 
ner as  she  may  think  proper  for  the  benefit  of  the  family  .  .  . 
as  near  equal  as  can  be,"  ^  and  "  I  desire  that  my  wife  shall  con- 
trol the  estate  and  shall  divide  and  pay  to  ray  children,"  are 
testamentary  and  create  a  trust.^  So  a  statement  that,  "  hav- 
ing implicit  confidence  in  the  goodness  and  kindness  of  my 
wife,  I  rely  on  her  to  make  all  needful  provisions  for  the  fut- 

1  Pierson  v.  Garnet,  3  Bro.  C.  C.  38,  by  a  "  wish  and  request "'  tliat  a  leg- 

226;  In  re  O'Bierne,  1  Jo.  &  Lat.  353.  atee,   and  also  a  person  who  took 

2Harland  v.  Trigg,  1  Bro.  C.  C.  143;  nothing  under  the  will,  should  care 

Paul  V.  Conipton,  8  Ves.  375.  for  and  superintend  the  education  of 

3Hinman  v.  Poynder,  5  Sim.  546;  some  third  person.     Foley  v.  Parry, 

Bales  V.  England,  3  Ves.  546;  Will-  5  Sim.  138,  3  My.  &  K.  138. 

4ams  V.  McKinley.  34  Kan.  514,  519.  eBardswell  v.  Bardswell,9Sim.  319, 

Contra,  In  re  Hamilton,  L.  R  3  Ch.  333;  Briggs  v.  Penny,  3  De  Gex  & 

870,  13  Rep.  355;  Brasher  v.  Marsh,  Sm.  539,  3  Mac.  &  G.  546,  554:  Stead 

15  Ohio  St.  103.  V.  Mellor,  L.  R.  5  Ch.  D.  325,  227. 

4  Whiting    V.    Whiting,     4    Gray  ■<  Parker  v.  Bolton,  5  L.  J.  Ch.  88. 

(Mass.),  336,  340;  McKee  v.  Means,  34  8  Ward  v.  Peloubet,  10  N.  J.  Eq. 

Ga.  349.  (1854),  304. 

5 Taylor  v.  George,  3  Ves.  &  B.  378;  side's  Ex'rs  v.  Clark,  5  Ohio  Cir. 

Provost  V.  Clark,  3  Mad.  458.    A  valid  Ct.  R.  839.     The  same  construction 

trust  is  created  by  the  words:  "It  is  was  followed  in  the  case  of  a  recom- 

my  will  and  desire  that  A.,  to  whom  mendation  to  the  wife  of  the  tes- 

I  give  this  legacy,  shall  leave  it  to  tator  to  increase  a  legacy.  Eberhardt 

such  of  my  relations  as  she  shall  v.  Perolin,  48  N.  J.  Eq.  593,  23  Atl.  R. 

think  proper."    Birch  v.  Wade,  3  V.  501. 
&  B.  198.    So  also  a  trust  is  created 


§  TO-i.]  TESTAMEXTAKY    ESES,  TRUST    ESTATES,  ETC.  1155 

ure  -wants  of  my  brother/'  raises  a  trust  in  favor  of  the  tes- 
tator's brother.^  If  the  language  creating  a  precatory  trust  is 
directory  and  binding,  it  is  no  objection  that  the  proportions 
in  which  the  beneficiaries  are  to  take  are  not  pointed  out. 
"Where  the  legatee  neglects  or  refuses  to  carry  out  the  trust 
equity  will  enforce  it;  and  where  the  proportion  is  left  to 
the  discretion  of  the  trustee,  equity  will  divide  equally  among 
all  the  beneficiaries.- 

The  obligation  of  a  testator  to  care  for  A.,  either  because 
the  testator  stands  towards  A.  iyi  loco  parentis,  or  because  he 
has  received  some  benefit  in  his  life  from  A.,  Avhich  he  is  mor- 
ally, though  perhaps  not  legally,  obligated  to  return,  should 
be  considered  in  every  case  of  an  alleged  precatory  trust  in 
favor  of  A.  in  order  to  ascertain  the  testator's  intention.  Tho 
law  demands  that  a  man  shall  be  just  before  he  is  generous, 
and  will  encourage  an  inclination  to  provide  for  those  who  in 
life  were  dependent  upon  the  testator,  as  against  those  who 
were  not.'' 

§  79i.  The  modem  rule  as  to  the  creation  of  precatory 
trusts. —  Many  of  the  older  decisions  went  too  far  in  raising 
trusts  from  vague  words  where  the  testator  had  employed  the 
language  of  recommendation,  entreaty  or  request.  This  in- 
clination to  favor  the  creation  of  trusts  was  doubtless  to  bo 
attrfbuted  to  tho  fact  that  legacies  of  personal  property,  in  con- 
nection with  which  precatory  words  were  most  frequently 
employed,  were  exclusively  cognizable  by  the  English  ecclesi- 
astical courts,  and  to  the  influence  of  the  rules  and  principles 

'  Blanchar J    v.    Chapman,   23  IlL  for  tlie  two  children  of  my  deceased 

App.  :{41.    And  in  Murphy  v.  Carlin,  brother  whom  we  have  undertaken 

liy.Mo.  112,  20  S.  \V.  R.  7H(5,  lan^uaKe  to  raise  and  educate,"  was  lield  to 

Jis  follows:  '•  it  is  my  wish  and  de-  create   a  trust  in  favor  of  the  two 

sire  that  A.  continue  to  provide  for  cliildren.     Noe  v.  Kern,  'Jii  Mo.  ;!(57.  0 

the  f:oinfort.  care  and  education  of  S.  W.  IL  2;^!). 

.1.  M.,  now  aj^ed  live  years,  who  has        'A  flin-ction  that  a  legatee  shall 

1m-«ti  raised  as  a  nicriiU'r  of  my  fain-  K'^e  t<»  aiiotlier  person  an  annuity 

ily  since   his  infaiK-v,  aiul^o  make  which  is  very  small  in  pro|H)rtion  to 

siiitahle  jtrovision  for  him  in  case  of  the    value    of    what    the    h-^atee    is 

hiT   df-ath,"'    was    held   to   be    ti-sta-  fC'veii,  '•  if  she  shoiiM  always  tiiid  it 

mentary.  convenient,"'  is  a  trust  which  is  di*- 

''Liddard  v.  I.iiMard,  28  R'uv.  20fl.  iM-ndcnt  u|M)n  the  convenicsnce  of  the 

A   j^ift  I'ouciied   in  absolute   terms,  lei;atee  ami  not  uiM)n  her  discretion, 

but  which  is  made  "in  full  faith  that  Philli|)s  v.   I'hillips,  112  X.  V.  11*7,  19 

my   liusband    will    |irop<rly   proviile  N.  K.  K.  1 11. 


lloG  LAW    OF    WILLS.  [§  Y94. 

of  the  Eoman  civil  law  upon  the  minds  of  the  ecclesiastical 
judges.  For  it  must  be  remembered,  in  endeavoring  to  arrive 
at  a  proper  estimate  of  the  force  and  application  of  any  of  the 
earlier  adjudications  upon  this  subject,  that  the  lloman  law  as 
developed  by  Justinian  and  his  coadjutors  favored  the  crea- 
tion of  trusts,  and  by  a  variety  of  comprehensive  phraseology 
conferred  a  large  discretion  upon  the  praetor  in  permitting 
them  to  be  implied  from  words  of  recommendation  and  the 
like.^  Hence  it  happened  by  the  time  the  jurisdiction  of  the 
court  of  chancery  had  been  extended  to  the  construction  of 
legacies,  that  the  immense  increase  of  wealth  attendant  upon 
the  spread  of  English  commerce  at  the  beginning  of  the  present 
century,  resulting  in  vast  accumulations  of  personalty  to  be  dis- 
posed of  by  will,  had  produced  a  volume  of  adjudications  extend- 
ing and  amplifying  the  doctrines  of  the  ecclesiastical  tribunals. 
The  mistaken  and  officious  kindness  of  the  chancellor  fre- 
quently interposed  to  create  trusts  for  the  benefit  of  persons 
mentioned  in  the  will  upon  the  slightest  language  of  confidence 
or  recommendation,  or  because  of  some  faint  expression  of  a 
wish  or  a  desire,  where  the  explicit  expression  of  intention  was 
absent;  and  often  under  circumstances  where  to  raise  a  trust 
Avould  be  in  direct  opposition  to  the  intention  of  tlie  testator.^ 
But  the  modern  decisions  have  greatly  limited  the  scope  of  the 
doctrine  of  precatory  trusts.  The  current  of  the  decisions,  both 
in  England  and  the  United  States,  indubitably  shows  that  prec- 
ator}'^  trusts  are  not  to  be  favored,  nor  is  their  extension  to  be 
encouraged  by  the  courts.' 

1  The  language  of  the  Eoman  law  sington  Vestry,  27  Ch.  D.  394,  411; 

is  "  7'ego,  j^cto,  volo,  inando,  ftdei,  iuae  Lambe   v.  Eames,  L.  R.  6  Ch.  597; 

committe."    Institutes,  2,  24,  .3.  IMussorie  Bank  v.  Raynor,  7  App.  Cas. 

-'In  Lambe  v.  Eames,  L.  R.  G  Ch.  321;  Stead  v.  Mellor,  5  Ch.  D.  225;  In 

597.     "  In   hearing   case    after    case  re  Moore,  Moore  v.  Roche,  34  W.  R. 

cited  I  could  not  help  feeling  that  343.     "  I  have  no  hesitation  in  saying 

the  officious  kindness  of  the  court  of  myself,  that  I  think  some  of  the  older 

chancery  in  interposing  trusts  where  authorities  went  a  great  deal  too  far 

the  fatlier  of  the  family  never  meant  in    holding    tliat    some    particular 

to  create  trusts  must   liave  been  a  words  appearing  in  a  will  were  suf- 

very  cruel  kindness  indeed."  ficient  to  create  a  trust.     Undoubt- 

^Durant  v.  Smith,  159  Mass.  229,  edly  confidence,  if  the  rest  of  the 

2.33;   "Van  Gorder  v.  Smith,  99  Ind.  context   shows   that  a  tru.st  is  in- 

404;     Fullenwider    v.    Watson,    113  tended,  may  make  a  trust,  but  what 

Ind.  18,  19:  Rona  v.  Meier.  47  Iowa,  we  have  to  look  at  is  the  whole  of 

607,  009;  In  re  Adams  and  the  Ken-  the  will  which  we  have  to  construe. 


§§  795,796.]       TESTAMEXTAKT    TSES,  TKUST    ESTATES,  ETC.  1157 

§  795.  The  relations  between  the  trustee  and  the  testator. 

Much  depends  upon  the  relation  existing  between  the  testator 
and  a  legatee  to  whom  precatory  language  is  addressed  in  de- 
termining whether  a  trust  is  created.  If  the  testator  gives 
property  to  a  stranger  he  must  emplo}''  correct  and  technical 
terms  to  create  a  trust,  or,  if  he  shall  not  use  the  words  "  in 
trust,"  he  must  employ  the  language  of  command  or  impera- 
tive direction.  When  he  speaks  in  his  will  to  a  wife  or  child 
whom  he  wished  to  act  as  a  trustee,  he  may  projierly  employ 
words  of  confidence,  desire,  entreaty  or  recommendation.  The 
stranger,  unless  expressly  appointed,  is  under  no  moral  obliga- 
tion to  act  as  a  trustee,  and  an  entreaty,  suggestion  or  recom- 
mendation would  not  be  imperative  to  him;  in  his  life  the 
testator  had  no  right  to  command  him,  and,  unless  he  does  it 
expressly  by  his  will,  he  will  not  be  presumed  to  have  done  so. 
But  w^iere  the  testator  addresses  precatory  words  of  confidence 
or  recommendation  to  those  who  during-  life  he  had  a  ricrht  to 
command,  it  may  be  presumed  that  he  intended  a  mandatory 
injunction,  though  out  of  politeness  he  has  used  language  which 
would  seem  to  leave  a  wide  discretion  in  such  persons  as  to  the 
disposition  of  the  property.^ 

ji  796.  Where  the  discretion  is  absolute  no  trust  is  cre- 
ated.—  Where  })roperty  is  by  the  will  given  to  A.  in  ahtiolutc 
i<  rins,  with  a  request,  recommendation  or  suggestion  that  ho 
shall  dispose  of  all  or  a  part  of  it  for  the  benefit  of  B.,  and  the 
terms  of  the  disposition  in  B.'s  favor  are  not  mandatory,  but 
leave  it  to  the  discretion  of  A.  whether  he  shall  give  1>.  any- 
thing or  not,  the  language  is  precatory,  and  not  testamentary, 

.'uid  if  tlio  confiflence  is  that  sliowill  Ailams  ami  the  Kensington  Vestry, 

do  what  is  ri^ht  as  rcj^anls  tlie  dis-  27  Ch.  l)iv.  ;{94. 

jKjsjil  of  tlie  property,  I  cannot  say         '  Warner  v.   Bates,   OH  Mass.  274; 

that  that  is, on  the  true  construction  Kmdx    v.    Knox,    .VJ   Wis.     172,    IHU; 

of  the  will,  a  trust  ini|K»s(!d  on  her.  Krickson  v.  Willard,  1  N.  H.  217,  227, 

Having?  re^jard  to  the  later  decisions,  22M.     "The  words  'desire,'  •  recpiest,' 

we  must  not  extend  the  old  cases  in  'recommend,'  'liojws'  'not  douhtinj;' 

any  way,  or  rely  u|M)n  the  mere  iwe  .     .    .    are  to  he  construml  as  com- 

of  any    particular   worils,   hut,  <'on-  marids    (dothccl    merely   in   tiic  lan- 

siderinK  all    tlw    words    which   an-  ^,'ua;?e  of  civility,  and  they  impos(>  on 

used,  we  have  \m  we  what  is  their  the  executor  a  duty   which    courts 

true  efTect,  and  what  wjis  the  intcn-  have     in     frerpient     instances     en- 

tion  of  the  testator  as  expressed   in  forced."'    Itemarks  of  Wuodliiiry,  J., 

tlie   will"     I3y  Cotton,  L.  J.,  In  ro  in  Krickson  v.  Willard,   I   N.  11.  217. 


115S  LAW   OF   WILLS.  [§  Y96. 

and  no  trust  is  created  in  favor  of  B.  What  language  shall  in 
every  case  be  sufficient  to  create  a  trust  cannot  be  stated  in 
a  general  rule.  Words  of  confidence,  recommendation,  hope 
or  expectation,  which  in  some  cases  liave  been  held  to  create 
a  trust,  have  in  others  been  denied  this  operation.  Thus,  where 
property  is  given  to  A.  in  fee,  with  the  expression  of  a  '■^wish  " 
that  the  legatee  will  so  arrancje  his  affairs  that  whatever  may  re- 
main at  his  death  will  go  to  B.,  no  trust  for  B.  is  created,  for 
the  limitation  of  what  remains  shows  that  the  testator  meant 
that  A.  might,  in  his  discretion,  consume  or  expend  the  whole. ^ 
And  a  mere  request  to  a  legatee  that,  upon  his  death,  he  will 
bequeath  consumable  articles  to  a  person  designated,^  or  a  wish 
that  he  shall  keep  the  property  in  his  family,*  is  merely  preca- 
tory. The  most  recent  cases  do  not  incline  to  regard  words 
of  recommendation,  hope  or  assurance  as  precatory.  The  first 
case,  says  Hart,  Y.  C.,*  that  construed  words  of  recommenda- 
tion into  a  command  made  a  will  for  the  testator.  And  if  the 
donee  has  an  unlimited  discretion  in  express  terms,  the  strong- 
est words  of  recommendation  will  be  disregarded  by  the  court.'^ 
Thus,  for  example,  no  trust  is  created  where  the  testator  gives 
property  absolutely,  "  recommending  the  devisee,  and  not  doubt- 
ing, if  she  has  no  relatives  of  her  own,  that  she  will  consider 
my  near  relative,  should  she  survive  me."  ^  According  to  the 
modern  cases,  mere  words  of  hope  or  expectation  regarding 

iNunn  V.   O'Brien  (Md.,  1896),  34  her  his  mother  and  sister,  and  re- 

Atl.  R.  244;  Mitchell  v.  Mitchell,  143  quested  her  to  make  such  provision 

Ind.  11.3,  42  N.  E.  R.  405.  for  them  as  in  her  judgment  might 

2Whelen's  Estate,  34  Atl.  R.  329,  be  best r    The  court  held  that  a  trust 

175  Pa.  St.  23;  Clay  v.  Wood  (X.  Y.),  was  created,  and  that  the  request 

47  N.  E.  R.  274.  and  recommendation  were  manda- 

3  In  re  Hamilton,  2  Ch.  370,  12  Re-  tory,  taking  into  consideration  the 
ports,  355;  Harland  v.  Trigg,  1  Bro.  facts  that  the  mother  of  the  testator 
C.  C.  142.  was  an  invalid  of  advanced  age,  re- 

4  Sale  V.  Moore,  1  Sim.  534  quiring  constant  care,  nursing  and 

5  In  re  Whitcom's  Estate,  86  Cal.  medical  attendance,  and  the  sister 
265,  24  Pac.  R.  1028;  Shaw  v.  Law-  dependent  upon  her.  The  discretion 
less,  5  C,  &  F.  129;  Meredith  v.  Hen-  of  the  widow,  if  any,  was  limited  to 
age,  1  Sim.  542.  the  extent  of  the  provision,  and  tlie 

''Sale  v.  Moore,  1  Sim.  534:  Reeves  court  did  not  hesitate  to  receive  evi- 

V.  Baker,  18  Beav.  373.     In  Colton  v.  dence    of    the    necessitous    circum- 

Colton,  127  U.  S.  300,  8  Sup.  Ct.  R.  stances    of    the     beneficiaries,    and 

1164.  the  testator,  giving  his  entire  to   consider    them    in    determining 

estate  to  his  wife,  •'  recommended  to  whether  a  trust  was  created. 


r96.] 


TESTAMENTARY    TSES,  TRUST    ESTATES,  ETC. 


1159 


the  disposition  which  a  legatee  is  to  make  of  property  given 
him  absolutely  do  not  create  a  trust.^  Thus,  it  has  been  held 
tliat  an  expression  of  a  desire  and  hojye,'^  or  of  a  hope  coupled 
"with  a  hel'ojf^  that  a  legatee  will  bestow  a  part  of  his  legacy 
on  another,  does  not  create  a  trust.*  So,  where  the  testator 
stated  that  he  expected  and  desired,'  that  he  desired  and  re- 
quested^ or  that  he  loished,  a  legatee  to  make  a  particular  dis- 
position of  the  legacy,  no  trust  was  created.  Thus,  a  bequest 
in  terms  absolute  to  two  persons,  followed  by  the  words:  "  And 
I  v:ish  them  to  bequeath  the  same  equally  between  the  families 
of  my  nephew  O  and  m^'-  dear  niece  P.  in  such  mode  as  they 
shall  consider  right,"  does  not  confer  merely  an  interest  for 
life  Avith  a  precatory  trust  added,  but  an  absolute  fee  simple.' 
So,  also,  the  expression  of  a  wish  that  a  devisee,  to  whom  the 
estate  is  given  absolutel}'',  shall  so  arrange  his  affairs  at  his 
death  that  whatever  shall  remain  shall  go  to  the  son  of  the 
testator,  is  precatory,  and  does  not  create  a  trust  in  favor  of 
said  son.^ 

It  is  useless  to  multiply  examples.  Each  will  must  be  con- 
strued according  to  its  peculiar  phraseology.  The  only  gen- 
eral rule  which  it  is  safe  to  enunciate  is  that,  where  a  gift  is 

Eq.(1863),  307,503;  Lechmere  v.  Lavie, 
2  My.  &  K  197. 

*  And  a  devise  in  fee  to  persons 
who  are  by  the  testator  "  admonislied 
and  clianjcd  tliat  the  gift  was  made  " 
in  the  hojye  and  iqton  the  trust  that 
they  shouUl  care  for  their  j>ari'nt3 
during  their  lives,  is  not  in  trust. 
Arnold  v.  Arnold,  41  S.  C.  291.  19  S. 
E.  R.  670.  The  court  here  delib- 
erately  rejected  the  w<jrds  "  in  trust.'' 

»ln  re  Clardner,  35  N.  E.  R.  439,  140 
N.  Y.  122. 

6 Clark  V.  Ilill  (Tcnn.).  30  S.  \V.  R. 
339;  Bacon  v.  Rjiiisoin.  130  Mass.  117, 
20  N.  E.  R.  473;  Bryan  v.  :\lilhy.  6 
Del.  Ch.  20H.  24  At!.  R.  333;  Kndcrs 
V.  Tfsfo,  11  S.  W.  R.  H18;  N.-groeb  v. 
IMuinnicr.  17  Md.  1(55. 

Uu  n«  Hamilton.  2  Cli.  370  (1M95), 
12  l{<'|>nrts,  355;  Tn-nch  v.  Hamilton, 
ill. 

"  Nitiiii  V.  OT.ririi  iMd.,  iSDOi,  .'U 
Atl.  K.  :;il. 


'  Sjwoner  v.  Lovejoy,  108  ^lass.  529, 
533;  nill  V.  Page  (Tenn.),  36  S.  W.  R. 
735;  Hart  v.  Allen  (Mass.,  1897),  44 
N.  R  R.  116:  Aldrich  v.  Aldrich 
(Mass.,  1898),  51  N.  E.  R.  449;  Whiting 
V.  Whiting,  4  Gray  (Mass.).  23(5,  240; 
Cole  V.  Littleficlil.  35  Me.  439;  Kinter 
V.  Jacobs,  43  Pa.  St.  445;  Pennock's 
Estate,  20  Pa.  St.  2(iH.  274.  282. 

^Hess  V.  Singler,  114  Mas.s.  56,  59; 
Bills  V.  Bills,  80  Iowa,  2G9,  45  N.  W. 
R.  748.  Cf.  Uarland  v.  Trigg.  1  Bro. 
C.  C.  142.  A  devi.se  of  "all  the  rest 
and  residue  of  my  i)ropcrty  .  .  . 
U)  rny  dear  wife,  .  .  .  holieving 
that  she  will  manage  it  judicicaisly, 
and  fH;rfe<-tly  satisfied  that  slif)  will 
make  a  fair  distribution  of  it  among 
our  cliildri'n  at  lu-r  <l<'.it h,"  conv«n's 
an  abfwjiutfi  title  to  thr;  residue  of  the 
real  estate,  the  words  not  being  pn'c- 
atory  in  th<'ir  nature.  (Jhi-slon  v. 
Chfston.  43  Atl.  U.  7«5M. 

'  Van  Duyno  v.  \'aii  l>uyn<.',  15  N.  .1. 


IIGO 


LAW    OF    WILLS. 


[§  T96. 


bestowed  in  absolute  terms,  and  tlie  use,  employment  or  dispo- 
sition of  the  property  is  left  to  the  discretion  of  the  legatee,  so 
that  he  may  consume  or  expend  the  wliole  for  his  own  benefit, 
no  trust  is  created  by  the  language  of  the  testator  recommend- 
ing, exhorting,  desiring  or  entreating  him  to  give  a  part  to 
another.*  If  the  conferring  of  the  pecuniary  benefit  is  rele- 
gated to  the  discretion  or  good  judgment  of  the  legatee,  or  if 
he  may  do  "a*  he  thhihs  j^^oper,^'''  oy  prudent,^  as  he  '''■may 
think  just  and  right,''''*  as  "Atf  may  thinh  hest^"^^  or  '■''may  see 
jit^'"^  or  as  her  sense  of  justice  and  Christian  duty  shall  dictate^ 
and,  a  fortiori,  if  the  testator  directs  that  the  legatee  is  to  be 
under  no  legal  responsibility  to  any  court  or  person  for  the 
use  of  the  money ,^  he  takes  an  absolute  title  unfettered  by  any 
trust,  although  the  strongest  words  of  desire,  suggestion  or 
recommendation  haA^e  been  used.* 


1  Ellis  V.  Ellis,  15  Ga.  29G;  Cock- 
rill  V.  Armstrong,  31  Ark.  580;  In  re 
Whitcoms  Estate,  86  Cal.  2G5,  24  Pac. 
R  1028;  Hunt  v.  Hunt,  50  Pac.  R.  578; 
Dexter  v.  Evans,  63  Conn.  58,  27  Atl. 
R  308;  Heard  v.  Sill,  26  Ga.  312; 
Jones  V.  Jones,  124  111.  254;  Bulfer  v. 
Willigrod.  71  Iowa,  620,  33  N.  W.  R 
136;  Fullen wider  v.  Watson,  118  Ind. 
18,  14  N.  W.  R  571 ;  Collins  v.  Car- 
lisle, 7  B.  Mon.  (Ky.)  14;  Webster  v. 
AVathen,  97  Ky.  318,  30  S.  W.  R  663; 
Hall  V.  Otis,  71  Me.  326,  330;  Morse 
V.  Morrell,  82  Me.  80, 84, 19  Atl.  R  97; 
Taylor  v.  Brown,  88  Me.  56,  59;  Stur- 
gis  V.  Paine,  146  Mass.  354,  16  N.  E. 
R  21;  Aldrich  v.  Aldricli  (Mass., 
1898),  51  N.  E.  R  449;  Bacon  v.  Ran- 
som, 139  Mass.  117,  29  N.  E.  R  473; 
Lucas  V.  Lockhart,  10  Smedes  &  M. 
(Miss.)  466:  Hunt  v.  Hunt,  11  Nev. 
442;  Forster  v.  Winfield,  23  N.  Y.  S. 
169,  3  Misc.  Rep.  435;  Dominick  v. 
Say  res,  3  Sandf.  (N.  Y.)  559:  Rose  v. 
Hatch,  125  N.  Y.  427,  26  N.  E.  R  467; 
Brunson  v.  King,  2  Hill  Eq.  (S.  C.) 
483,  490;  Rowland  v.  Rowland,  29  S. 
C.  54,  6  S.  E.  R  902;  Thompson  v. 
McKissick,  3  Humph.  (Tenn.)  631; 
Tabor  v.  Tabor,  85  Wis.  313,  316; 
Knox  V.  Knox,  59  Wis.  172, 175;  Toms 


V.  Owen,  52  Fed.  R  417:  Hoy  \.  Mas- 
ter, 6  Sim.  568;  Scott  v.  Key,  35  Beav. 
291;  M'Cornish  v.  Grogan,  1  I.  R  313; 
Finden  v.  Stevens,  2  Phil.  142:  Knott 
V.  Cottee,  2  Phil.  192:  Brook  v.  Brook, 
3  Smale  &  Gif.  280;  Meredith  v.  He- 
neage,  1  Sim.  542;  Shepperd  v.  Not- 
tage,  2  J.  &  H.  766;  Foster  v.  Elshey, 
L.  R  19  Ch.  D.  518;  Johnston  v.  Row- 
land, 2  De  Gex  &  Sm.  356;  Williams 
v.  Williams,  1  Sim.  (N.  S.)  358,  372; 
Cole  V.  Hawes,  L.  R  4  Ch.  D.  238; 
Wood  V.  Cox,  1  Keen.  317. 

2  Weiler  v.  O'Brien,  23  N.  Y.  366. 

3  Rowland  v.  Rowland,  29  S.  C.  54, 
6  S.  E.  R  902. 

4  Boyle  v.  Boyle,  152  Pa.  St.  108,  31 
W.  N.  C.  453,  25  AtL  R  494. 

5  Bulfer  V.  Willigrod,  71  Iowa,  620, 
33  N.  W.  R  136. 

« Dexter  v.  Evans,  63  Conn.  58,  27 
Atl.  R.  308. 

T  Lawrence  v.  Cooke,  104  N.  Y.  632, 
11  N.  E.  R  144. 

s  Bacon  v.  Ransom,  139  Mass.  117, 
29  N.  E.  R  473;  Biddle"s  Appeal,  80 
Pa.  St.  258. 

9  Eaton  V.  Watts,  L  R  4  Eq.  151; 
Young  V.  Martin,  2  Y.  &  C.  C.  C.  582; 
Lambe  v.  Fames,  L.  R  10  Eq.  267; 
Stead  V.  Mellor,  L  R  5  Ch.  D.  225;. 


§  TOT.]         testa:mentaky  uses,  trust  estates,  etc. 


1161 


§  797.  Precatory  words  in  a  devise  to  a  person  for  himself 
and  children. —  Gifts  to  the  widow  or  child  of  the  testator  or 
to  a  stranger,  conferring,  by  express  language,  an  absolute  title, 
but  containing  an  expression  of  hope,  confidence,  assurance  or 
desire  that  the  devisee  will  expend  a  portion  in  the  support  or 
education  of  his  or  her  children,  are  usually  construed  to  give 
the  parent  an  absolute  fee  and  to  create  no  trust  in  him  which 
the  children  can  enforce.  The  dispositive  language  of  the  tes- 
tator, so  far  as  it  refers  to  the  children,  is  intended  solely  to 
show  the  purpose  and  motive  of  the  gift  to  the  mother  or  father.^ 
But  some  English  cases  have  construed  a  2:ift  to  A.  for  the  bene- 
fit  of  himself  and  children  as  creating  a  trust  in  A.  for  his  chil- 
dren,- or  a  life  estate  in  him  and  a  power  of  api)ointment  by 
will  in  favor  of  the  children.    Everything  depends  upon  the  pre- 

Barrett  v.  IMarsh,  126  Mass.  213,  21-5; 
Ran.lall  v.  Randall,  135  111.  398,  26  N. 
E.  R.  7><0.  where  an  absolute  legacy 
was  given  to  the  husband  of  the  tes- 
tatrix to  pro^nde  for  the  support  of 
their  children,  and  from  time  to  time 
to  be  advanced  to  them  as  they  may 
need,  but  vriih  full  power  to  control 
the  same  as  his  absolute  property 
without  being  required  to  file  or  ren- 
der anj'  account  whatever.  Thus, 
"le.xpect  and  desire  that  my  wife, 
to  whom  the  pro])erty  was  given  ab- 
solutely,"' will  not  dispose  of  any  of 
Kiiid  estate  Vjy  will  so  that  it  shall  go 
out  of  my  family  and  blood  relations, 
does  not  create  a  trust.  In  re  (xard- 
ner,  3.1  N.  E.  R  439,  140  N.  Y.  122.  A 
Ij<->wer  of  api>ointment  is  not  created 
by  a  devise  of  pro|)(jrty  to  be  at  tiie 
s<jle  disjKJsal  of  tlie  devisee,  "  but 
trusting  tliat,  siiould  she  not  marry 
and  havf.'otlii'r  cliildri'ii,  h(Tair<*ctiiin 
to  our  joint  cliildrfii  will  induce  her 
to  make  our  sjiid  daughter  her  prin- 
cipal heir."     Hoy  v.   .Master,  (»  Sim. 

'Smith  V.  Wilrlmun,  3{)  ('onn.  3H7; 
All.-n  V.  .M(I'arlan<l,  I'lO  III.  4.-m.  37 
N.  li  \i.  1000;  Hryan  v.  1  lowland,  \\H 
III.  6J.j;  ZimiiKT  v.  Sennot.  134  III. 
Wj.'),  2.->  N.  E.  \L  774:  .Sale  v.  Tlioriiv 
bury,  80  Ky.  260,  T,  S.  H  \i.  .VW;  Uluuin 


V.  Phaneuf,  81  Me.  176, 181, 16  Atl.  R. 
540;  Cole  v.  Littlefield,  35  Me.  439, 
445;  Aldrich  v.  Aldrich  (Mass.,  1898), 
51  N.  E.  R.  449;  Chase  v.  Chase,  5 
Allen  (Mass.),  101;  Taft  v.  Taft,  130 
Mass.  461;  Whiting  v.  Whiting,  4 
Gray  (Mass.),  236,  240;  Elkinton  v. 
Elkinton  (N.  J.  Eq.),  18  Atl.  R  587; 
Pratt  V.  ]Miller,  23  Neb.  496:  Holder 
V.  Holder,  59  N.  Y.  S.  204,  40  App.  Div. 
255;  Mclntyre  v.  IMcIntyre,  123  Pa. 
St.  323,  16  Atl.  R.  783:  Boyle  v.  Boyle, 
152  Pa.  St.  lOH.  25  Atl.  R.  494;  Pais- 
ley's Appeal,  70  Pa.  St.  153,  158;  Bid- 
die's  Appeal,  80  Pa.  St.  258;  llippen- 
stall's  Appeal,  144  Pa.  St.  259;  Thomp- 
son  V.  McKissick,  3  Humph.  631; 
Rhett  V.  Mason,  18  Graft.  (Va.)541; 
In  re  Adams,  L.  R  24  Ch.  I).  199; 
Webb  V.  Wool.s.  2  Sim.  (N.  S.)  267;  In 
re  Adams  and  Kensingtt)n,  L.  R.  27 
Ch.  D.  394;  Howarth  v.  Dcwell.  29 
Beav.  18;  Scott  v.  Key,  35  Bcav.  291; 
(ircene  v.  {ireen«'.  3  I.  R  90;  Push- 
man  v.  Eillitcr,  3  Vps.  7;  Lamlni  v. 
Ivim(»s,  L.  R  6  ('h.  597;  Atkinson  v. 
Atkinson,  02  \a\.w  Time-s,  733;  Paul 
V.  (.'omptori.  8  V«'H,  3H0;  Cruwj's  v. 
('olcman,  9  Vcs.  319;  Carr  v.  Living, 
2.S  M..)i\ .  61 1. 

-hird  V.  .Mavl.ury.  33  Beav.  351; 
l.diigMiortf  V.  lOlcomc,  34  Heav.  536; 
Hi-rrv  V.  {{riant,  2  hn-w.  &  Sm.  1. 


11G2  LAW  OF  WILLS.  [§  798. 

cise  language  of  the  will.  Thus,  the  fact  that  tlic  mother  is 
directed  in  precatory  words  to  devise  what  remains  among  her 
children,'  is  given  a  power  to  do  so,-  or  that  either  by  deed  or 
will  she  may  appoint  certain  sums  to  the  children  who  behave 
themselves  to  her  satisfaction,^  will  not  create  a  trust  for  the 
children,  where  the  parent  is  given  an  absolute  title  and  the  dis- 
position of  the  property  is  left  to  her  discretion.  So,  too,  where 
the  testator  gives  property  to  her  husband  "  hoping  he  would 
leave  it  to  his  sons  if  the  latter  was  worthy,"  but  giving  the 
father  full  discretion,  no  trust  is  created,  as  the  words  of  hope 
are  qualified  by  language  which  gives  the  parent  a  full  discre- 
tion as  to  the  disposition  of  the  property.*  And  a  devise  of  all 
the  land  of  the  testator  to  his  wife,  "  to  have  and  to  hold  in  fee 
simple,"  followed  by  an  expression  of  trust  and  confidence  that 
the  wife  would  provide  by  last  will  for  equitable  distribution 
among  their  children,  with  a  further  provision  that  "  this  ex- 
pression of  trust  and  confidence  is  not  to  be  interpreted  as  lim- 
iting her  right  of  ownership  or  power  of  distribution,"  creates 
no  trust,  but  gives  the  wife  an  estate  in  fee  simple.^ 

§  798.  Powers  of  appointment  defined  and  classified. —  It 
M'ill  be  impossible,  owing  to  the  limited  space  which  is  at  our 
disposal,  to  give  any  but  the  most  concise  treatment  of  the 
subject  of  testamentary  powers  of  disposition  and  selection. 
In  the  first  place,  it  may  be  said  powers  of  appointment  assimi- 
late in  their  character  very  closely  to  trust  estates,  so  that 
many  of  the  rules  elsewhere  discussed,  relating  to  trusts,  may 
also  be  applied  to  powers.^  All  estates  in  land  which  are  created 
by  the  execution  of  powers  owe  their  validity  either  to  the  stat- 
ute of  uses  or  to  that  of  wills. 

Powers  owe  their  origin  to  equity,  where  they  were  permitted 
to  be  created  in  two  ways.  First.  They  might  be  created  by 
a  deed,  in  which  case  the  power  which  was  created  was  valid 
only  if  it  would  be  valid  as  a  use  under  the  statute  of  uses. 
Second.  They  might  be  created  by  will.  The  donee  of  the 
power  created  by  the  will  might  then  execute  it  by  his  deed 
or  will.     An  example  of  a  power  to  be  exercised  by  will  would 

1  Grierson  v.  Kirsop,  2  Keen.  633.  5  Tabor  v.  Tabor,  55  N.  W,  R  702, 

2  Howorth  V.  Dewell,  29  Beav.  18.  85  Wis.  313. 

3  Le  Frov  v.  Flood,  1  Ir.  Ch.  1.  6  See  ante,  %  782  et  seq. 
*  Eaton  V.  Watts.  L.  R  4  Eq.  151. 


§  798.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  11G3 

be  a  devise  to  A.  of  an  estate  for  life,  witli  a  power  in  A.  to  di- 
vide the  estate  among  his  children  by  his  will.  This  is  a  spe- 
cial power  in  A.,  and  operates  as  a  future  use  until  A.'s  death, 
when  the  legal  title  vests  in  the  children  either  under  his  will 
by  appointment,  or  in  default  of  an  appointment  it  vests  in  the 
children  of  A,  under  the  original  instrument  creating  the  power. 
An  example  of  a  power  created  by  will  to  be  exercised  by  deed 
would  be  a  power  of  sale  conferred  upon  an  executor. 

By  the  employment  of  powers  a  testator  is  enabled  to  create 
executory  estates  to  begin  in  the  distant  future,  when,  in  the 
judfjmentofihe  donee.,  they  can  be  most  advantageously  created. 
The  interest  of  the  persons  named  who  are  in  the  end  to  bene- 
fit by  the  appointment,  -if  the  poioer  is  special,  is  a  contingent 
use  or  an  executory  devise  until,  by  the  appointment,  the  legal 
estate  becomes  vested  in  them.  This  equital)le  interest  they 
take  under  the  original  instrument  by  which  the  power  is 
created,  and  not  by  the  appointing  instrument.  The  elasticity 
of  powers  and  their  great  convenience  in  family  settlements  of 
property  recommended  them  to  the  attention  of  the  English 
chancellors.  In  course  of  time,  as  a  result  of  the  continuous 
exposition  of  the  subject,  a  system  of  intricate  rules  regulating 
powers  was  established,  and  the  more  extensively  powers  were 
employed  the  more  abstruse  and  complex  became  the  rules  by 
which  they  were  governed. 

The  persons  who  are  concerned  in  the  creation  and  the  ex- 
ecution of  the  power  are  the  donor,  who  confers  or  creates  it; 
the  donee,  who  is  the  person  upon  whom  it  is  conferred,  and 
who,  as  regards  its  execution,  is  called  the  appointor;  and  the 
appointee,  who  is  the  person  foi-  whose  benefit  the  power  is  to  bo 
exercised,  and  who  may  take;  in  default  of  an  ai)p<>inlment. 
Powers  may  be  classified  according  to  the  character  of  the  ap- 
pointees into  general  powers  and  special  powers.  A  (pneral 
pfnner  is  one  wiiich  may  1)C  exercised  by  the  donee  in  I'avoi*  of 
any  person  or  class  of  persons  wlioiii  he  may  choose  The 
donee  under  a  g('n<!ral  power  may  appoint  to  any  person  or 
class  of  pers(ms  he  pleases.  A  npeciid pomrr  is  one  whicli  can 
be  exorcised  only  in  favor  of  particular  jjcrsoiis  or  classes  of 
persons,  usually  indicated  by  tlwj  donoi-.' 

'Sof;  pnHt,^Hm\  2  Wuslibuni,  li,  1'..  p.  fill;  Co.  Lit.  TAb;  Williiiiiis  oa 
Real  ProiKjrty,  i..  :iOU. 


11G4  LAW    OF   WILLS.  [§  TOS. 

PoAvcT"  inn}'  also  be  divided,  as  regards  the  character  of  the 
interest  whicli  they  create  or  which  they  revoke,  into  powers 
appendant  or  apjju/'fen(nit,  by  the  exercise  of  which  the  donee 
creates  an  estate  which  attaches  to  or  inodiiies  his  own  intci'- 
est  in  the  hind,  as  a  power  to  grant  leases  which  is  attached  to 
a  life  estate.  Here  the  lease  which  is  made  takes  effect,  not 
only  in  derogation  of  the  life  tenant's  estate,  but  may  bind  the 
remainderman  where  the  lease  does  not  expire  during  the  ex- 
istence of  the  life  tenancy.^  Powers  collateral  en  gross  are 
those  by  which  the  donee  creates  an  interest  in  land  in  another 
person  which  docs  not  attach  to  or  diminish  his  own  interest 
in  the  land.  The  creation  of  the  estate  by  the  power,  though 
the  donee  has  an  interest,  does  not  affect  that  interest  in  any 
"way.  The  estate  which  is  created  by  the  power  is  usually  to 
be  taken  out  of  the  interest  of  some  other  person  in  the  prop- 
erty after  the  estate  of  the  donee  has  ceased.  Examples  of 
these  powers  in  gross  are  powers  conferred  upon  a  life  tenant 
to  devise  the  fee  in  remainder,  or  to  grant  leases  which  are  to 
begin  at  his  death,  or  to  raise  an  estate  in  jointure  for  himself 
for  life,  then  to  his  widow  for  her  life,  remainder  over.-  Pow- 
ers simply  collateral  are  those  conferred  upon  a  person  who 
has  no  other  interest  in  or  title  to  the  land  except  the  power. 
All  the  donee  has  is  a  right  to  a})point  the  estate,  the  legal  title 
to  w^hich  is  in  others.  An  example  of  such  a  power  is  a  power 
of  sale  in  the  executor,  enabling  him  to  dispose  of  land  to  pay 
debts  or  to  divide.^ 

1  Williams  on  R.  P.,  p.  310;  2  Wash,  given  to  a  person  who  has  an  inter- 
on  Real  Prop.,  pp.  639,  640.  est  in  the  property  over  which  tlie 

'1    Sugden     on    Powers,    114;     4  power  extended,  but  which  is  such 

Cruise's  Digest,  220;  2  Washburn,  R.  an  interest  as  cannot  be  affected  by 

Prop.  641 ;  Gorin  v.  Gordon,  38  Miss,  the  exercise  of  the  power.    The  most 

214;  Wilson  v.  Troup,  2  Cow,  (N.  Y.)  familiar  instance  of  such  a  power  is 

236.  that  of  a  tenant  for  life  with  a  power 

3  Ante,  %  782.  of  appointment  by  will,  to  take  effect 

The  following  classification  of  pow-  after  his  death, 

ers  may  be  found  of  value:  III.  A  power  appendant  or  appurte- 

L  Powers  simply  collateral;  i.  e.,  nant;  i.  e.,  a  power  exercisable  by  a 

powers  given  to  a  person  who  has  no  person  who  has  an  interest  in  the 

interest   whatever  in  the    property  property,  which  interest  is  capable 

over  which  the  power  is  given;  e.  g.,  of  being  affected,  diminished,  or  dis- 

where  executors  have  a  power  to  sell  posed  of  to  some  extent  by  the  exer- 

or  to  mortgage  lanrL  cise  of  the  power;  e.  g.,  power  of  a 

n.  A  power  in  gross;  L  e,,  a  power  tenant  for  life  to  grant  leases.    In  re 


§§   799,  800.]       TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  11G5 

§  799.  Language  necessary  to  be  used  to  create  a  power. — 

Ko  formal  language  is  required  to  create  a  power.  Any  words 
which  clearly  show  the  intention  of  the  testator  to  create  the 
power,  and  which  are  definite  enough  to  show  its  nature,  the 
donee  and  its  objects,  are  sufficient.  The  court  must  seek 
the  intention  of  the  testator  who  has  conferred  the  power,  and 
this,  when  ascertained,  must  be  carried  out  in  a  liberal  and 
equitable  manner.  Great  latitude  of  language  is  allowed  to  a 
testator  in  the  creation  of  testamentary  powers.  For  this  rea- 
son it  is  often  very  difficult  to  determine  whether  the  testator 
has  given  an  estate  in  the  land,  or  onl}'^  a  naked  power  with  the 
legal  title  in  some  one  else.^  This  question  most  frequently 
arises  where  land  is  to  be  sold  for  some  testamentary  purpose, 
as  to  pay  debts  or  to  distribute  the  proceeds.  If  from  all  the 
will  it  is  apparent  that  the  testator  has  devised  the  legal  estate 
to  the  person  who  is  to  exercise  the  power,  it  is  a  power  coupled 
with  an  interest,  and  is  elsewhere  explained.'^  Eut  where  the 
executor  is  only  directed  to  sell,  and  the  property  itself  is  not 
disposed  of  or  is  given  to  others,  all  the  executor  has  is  a  mere 
naked  power. 

§  800.  The  mode  of  the  execution  of  the  power. —  The 
donee  of  a  testamentary  power  must  execute  it  strictly  in  the 
mode  indicated  by  the  donor  and  according  to  the  limitations 
and  conditions  he  has  imposed  upon  the  (h)nee.''  A  power  of 
ajjpointment  by  will  is  not  properly  executed  by  an  ap|)oint- 
iiient  In'  deed.*  And  every  deed  or  will  executing  a  })ower 
should  expressly  declare  the  property  disposed  of,  the  author- 
ity of  the  per.son  executing  it,  and  the  formalities,  if  any,  re- 
quired by  the  creator  of  the  power.**  Under  the  statute  of  frauds 
an  instrument  in  writing  is  always  necessary  to  execute  a  ])()wer 
over  real  estate."     And  as  the  don(jr  of  the  power  has  ;iii  ali 

I)'Aii;^il)aii,     Andrew.s    v.    Aiidn-ws,  liis  wife  Iiy  iIccmI.     lie  doviscil  liciaii 

I.U  K.  l")  Cli.  l)iv.  228.  I'stiitH   ill  j<jintiin5   l»y  will,  ami  tlm 

^  Aiil«',  ^  7H2.  chaiiccllor  sustained  this  as  a  valid 

2 ,1  »7r,  JS  782.  cxfcut ion  <>f  tlu«  power  Iwcaiiso  tlu^ 

■'  1  Sii;;d»'n  on  I'owcrs,  2 11 ,  2.'»(),  278 ;  wile  woidcl  not  otiifi  wise  l»i<  provided 

Williams  on  Heal  l'ro|M'rty.  2J).'».  for. 

< There  may  Ix'  exceptions  to  thin  *  1  Kent.  p.  ;{2;i. 

ruh;  in  equity.     In  Toilet  v.  Toilet.  2  "  I'erkins  v.  I'rfsntll,  100  N.  ('.  220, 

1*.  Wms.  W.K  a  man  had  a  life  estate  (',  S.  I!.  \L  sol. 

with  a  |(<iv\cr  fo  niiike  :i  ic  liiitnii'  fur 


IICG  LAW    OF    WILLS.  [§  800. 

solute  riglit  to  prescribe  any  conditions  by  which  its  exercise 
shoukl  be  attended,  it  is  the  rule  at  law,  and  independent!}'-  of 
statute,  tliat  the  execution  of  the  power  is  not  valid  if  the  pre- 
cise conditions  mentioned  are  not  complied  with.^  AVhcre  no 
particular  formalities  are  required  in  the  execution  of  the 
power,  it  may  be  executed  by  any  writing  sufficient  under  the 
statute  to  convey  an  interest  in  real  property.  Thus,  in  the  ab- 
sence of  statute,  a  power  of  appointment  by  will  may  be  exe- 
cuted by  a  writing  in  tite  nature  of  a  ivill,  though  it  is  not 
executed  according  to  the  formalities  which  are  required  by 
the  statute  of  wills.'- 

Generally,  too,  if  there  be  a  slight  divergence  from  the  di- 
rections of  the  donor,  the  aid  of  a  court  of  equity  may  be 
invoked  to  cure  the  errors  or  omissions,  particularly,  if  the 
power  is  special,  and  therefore  in  the  nature  of  a  trust  estate 
in  which  others  than  the  donee  have  an  equitable  interest. 
"Where  a  deed  in  execution  of  a  power  of  sale  or  a  power  to 
mortgage  is  invalid  at  law  because  of  a  lack  of  witnesses  or  a 
seal,  or  because  of  the  omission  of  words  of  limitation,  or  for 
some  other  informality,  a  re-execution  would  be  directed  upon 
application  to  a  court  of  equity.^  But  a  defective  execution  of 
a  power  by  deed  will  be  aitled  in  equity,  and  omissions  supplied 
only  where  it  is  clearly  evident  that  an  execution  of  the  power 
was  intended.  If  the  instrument,  by  wliich  the  intention  to 
execute  a  power  is  shown,  is  informal  and  inappropriate,  its  ref- 
ormation into  one  that  is  formal  and  correct  will  be  ordered. 
The  distinction  lies  between  a  case  where  an  attempt  is  made  to 
execute  the  power,  and  the  execution  is  in  danger  of  failure  be- 

1  Hawkins  v.  Kemp,  3  East,  410;  v.  Wentworth,  82  Md.  258,  33  Atl.  E. 
Doe  V.  Peach,  2  Maule  &  Sel.  576;  723;  Kearney  v.  Yaughan,  50  Mo.  484: 
Wright  V.  Wakeford.  17  Ves.  454.  Beatty  v.  Clark,  20  Cal.  11;  Mutual 

2  Oliver  v.  Wentworth,  82  Md.  258,  L.  I.  Co.  v.  Everett,  40  N.  J.  Eq.  345; 
33  Atl.  R.  723;  Heath  v.  Withington,  Wright  v.  Railroad  Co.,  92  Hun,  32, 
6  Cush.  (Mass.)  497,  500;  Newbury-  3G  N.  Y.  S.  901;  Bradish  v.  Gibbs,  3 
])ort  Bank  v.  Stone,  13  Pick.  (:Mass.)  Johns.  CIi.  (N.  Y.)  523,  550:  Hout  v. 
433;  Osgood  v.  Breed,  12  Mass.  525;  Hout,  20  Oliio  St.  119;  Porter  v. 
Porter  v.  Turner,  3  S.  &  R.  108;  Turner,  3  S.  &  R  (Pa.)  108,  111,  114; 
Deane  v.Littlefield,l  Pick.  (Mass.)  239.  Hunt  v.  Rousmaniere,  2  Mason.  C.  C. 
Cf.  Hatchett  v.  Hatchett,  103  Ala.  251:  Piatt  v.  McCullough,  1  McLean, 
536.  C.  C.  69;  Wade  v.  Paget,  1  Bro.  C.  C. 

3  Hatchett  v.  Hatchett,  103  Ala.  363:  Cockerell  v.  Cholmeley,  1  Russ. 
536;  Stewart  v.  Stokes,  33  Ala.  494:  &  My.  424.  See  McConnell  v.  Day,  61 
Terry  v.  Rohan,  5  S.  E.  R  38;  Oliver  Ark.  464,  33  S.  W.  R.  731. 


§  800.]  TESTAMENTAKT    USES,  TKUST   ESTATES,  ETC.  1167 

cause  some  formality  has  not  been  observed,  and  a  case  where 
no  attempt  whatever  has  been  made  to  execute  the  power. 
There  must  be  a  distinct  intention  to  execute  the  power.  If 
this  is  not  present,  although  equity  may  supply  defects  occa- 
sioned by  mistake  or  inadvertence,  it  will  not  supply  omissions 
intentionally  made,  or  execute  a  power  which  the  donee  did  not 
intend  to  execute.^  In  other  words,  the  court  of  equity  will 
not  permit  an  attempted  execution  of  a  power  to  be  defeated 
merely  because  of  the  inadvertent  omission  of  a  mere  form; 
but  if  no  attempt  has  been  made  to  execute  a  power,  no  inten- 
tion to  exercise  it  can  be  presumed.'^  If  the  donee  of  a  power  of 
sale  has  also  an  interest  in  his  own  right,  his  deed  purpoi'ting 
to  convey  the  land,  but  making  no  reference  to  the  power,  will 
usually  conve}"  only  his  own  interest.  Thus,  where  land  is  de- 
vised by  the  testator  to  A.  for  life,  with  a  power  of  sale  of  the 
fee,  the  proceeds  to  be  invested  or  paid  to  third  persons,  a  deed 
of  conversance  executed  by  A.  individually,  making  no  refer- 
ence to  the  existence  of  the  power,  will  convey  only  such  right 
and  title  to  the  land  as  A.  owned  absolutely.^  And  a  court  of 
equity  will  not  reform  a  deed  executed  by  a  devisee  for  life, 
having  a  power  under  a  will  to  convey  the  fee  for  her  support, 
■where  the  deed  makes  no  reference  to  the  testamentary  power 
of  sale,  and  there  is  no  evidence  that  it  was  intended  as  an  exe- 
cution of  the  power.* 

If,  however,  it  is  clear  from  the  circumstances  that  the  deed, 
though  not  referring  to  the  power  itself  or  to  the  instrument 
which  created  it,  was  intended  by  the  grantor  not  only  to  cun- 

1  Garth  v.  Townsend,  L.  R.  7  Eq.  2:30.        3  Smith  v.  :McTntyre,  9.")  Fed.  R.  58.j; 

2  Jackson  v.  Jackson,  4  Bro.  C.  C.  New  En^^lanil  Mort^a^je  Co.  v.  Biiice, 
462;  Wilkfis  v.  llohnes.  9  Mod.  4h.-j;  liS  Ga.  TU').  2(5  S.  E.  11.  Hi:  Rid^t'ly  v. 
Taylor  V.  \Vlif;eler,  3  Vorn.  .104;  Hi.\by  Cross,  h:5  Md.  U5l.  :54  Atl.  R.  Kill;  I'hil- 
V.  Eley,  2  Bro.  C.  C.  :J2.>;  Ilervcy  v.  lips  v.  Bn.wii.  Iti  R.  I.  (112.  1.")  Atl.  R. 
Hervey,  1  Atk.  507,  ."jOB;  Smith  v.  !»<»;  r.-as.-  v.  (iilletti*.  :52  N.  Y.  Supji. 
Bjiker,  1  Atk.  :J8.j;  Shannon  v.  Brad-  li)2.  10  .Misc.  R.  4(17;  (irundy  v.  Hat- 
Ktre«t,  1  Sch.  &  Lef.  52.  OH;  Fotlier-  li<'ld,  Ki  R.  I.  r)79.  18  Atl.  R,  180;  Mc- 
Kill  V.  I'othcr^cill.  2  En-cm.  250;  Ken-  Crcary  v.  BomhcrKcr.  l."il  I 'a.  St.  ;{2;j. 
naril  v.  Kcnnard,  E.  R.  8  Ch.  App.  'M  W.  N.  ('.  41;  Taync  v.  .Johrisuu 
572:  Wilson  v.  Ri^K'^tt.  2  Ves.  Jr.  :r.l ;  (Ky.),  21  S.  W.  R.  2;(S;  M..  iWJ;  Miit- 
(Jarth  V.  Townsend,  I^  It  7  E<|.  220;  ual  I.^  Ins.  Co.  v.  Sliipman,  119  N.  V. 
Kcnnard    v.    Kcnnard.   E.    R.    H   Ch.  :J2J.  21  N.  E.  \l.  177 

App.  227;  I^JinK^low  v.  IJln^^Hlo^v,  21         *  Brown  v.  I'iiillips,  10  R  1.  012,  IB 

licav.   r,r,:i;    Vunu    V.    Elctcli.r,    1    I'.     Atl.  R.  219. 

\Vm.s.:3:>l. 


1168  LAW    OF    WILLS.  [§  801. 

vey  an}'  interest  he  may  have  in  the  pi"opcrty,  but  as  a  valid 
execution  of  the  power,  the  intention  will  be  res]iecte(l  and  the 
defective  execution  will  be  aided.  Eut  the  intention  to  execute 
the  power,  if  it  does  not  appear  in  express  terms  upon  the  face 
of  the  instrument,  must  arise  by  very  necessary  implication.^ 
Every  conveyance  executed  by  virtue  of  a  poAver  of  sale  should 
recite  the  power  in  cx])licit  language,  showing  its  oi'igin  and 
extent,  and  showing  that  the  property  or  estate  conveyed  is 
conveyed  in  execution  of  the  power.'-  All  these  facts  ought  to 
appear  upon  the  face  of  the  instrument. 

But  where  an  executor,  trustee  or  other  donee  of  a  power 
has  no  interest  in  the  property  as  an  individual,  a  deed  of  con- 
veyance, though  not  reciting  the  power  nor  the  fact  that  he  is 
an  executor  or  a  trustee,  nor  showing  that  it  purports  to  be  exe- 
cuted as  carrying  out  the  power,  is  valid.' 

§  801.  The  execution  of  a  power  of  appointment  by  a  gen- 
eral or  residuary  devise  in  a  will. —  In  determining  the  ques- 
tion whether  a  power  of  appointment  which  is  to  Ije  exercised 
by  will  is  validl}^  executed  by  a  general  or  a  residuary  clause 
in  a  will,  it  is  first  necessary  to  determine  if  the  donee  meant 
to  execute  it.  This  must  be  ascertained  solely  from  the  lan- 
guage of  the  will.  The  intention  to  execute  a  power  by  will 
may  be  shown  in  three  modes.  1st.  Where  there  is  an  express 
reference  to  the  power  itself.  2d.  Where  the  will  expressly 
refers  to  the  property  over  which  the  testator  has  a  power  of 
appointment.  3d.  Where  the  provisions  of  the  will  executed 
by  the  donee  of  a  power  to  devise  would  be  nullified  unless 
they  are  to  be  regarded  as  an  execution  of  the  power.^  An  ex- 
press reference  to  the  power  or  to  the  property  Av^hich  is  the 
subject  of  the  power  will  usually  be  conclusive  evidence  of  an 
intention  to  execute  it. 

But  it  is  not  always  necessary  that  the  intention  to  execute 

1  Henderson  v.  Smitli,  10  C.  C.  A.  Rodohan,  79  Ga.  278,  5  S.  E.  R.  88; 

602,  62  Fed.  R.  708:  Mutual  L.  I.  Co.  Hill  v.  Conrad  (Tex.,  1898),  43  S.  W. 

V.  Shipraan,  24  N.  E.  R.  177,  119  N.  Y.  R.  789. 

324;  Getting  v.  Sartiges,  17  R.  I.  668,  2  Johnson  v.  Johnson,  108  N.  C.  619. 

24  Atl.  R.  530;  Chase  v.  Ladd,  29  N.  3  Terry  v.  Rodohan,  79  Ga.  278,  5  S. 

E.  R.  637.  lo")  ]Mass.  417;  Silvers  v.  E.  R.  38;  Arlington  State  Bank  v. 

Canary,  109  Ind.  267,  9  N.  E.  R.  904;  Paulsen  (Neb..  1899),  78  N.  W.  R.  303. 

Brown  v.  Farmers"  Loan  &  T.  Co.,  121  ^  See  remarks  of  Story,  J.,  in  Blagge 

N.  Y.  302,  24  N.  K  R.  602;  Teny  v.  v.  Miles,  1  Story,  C.  C.  426. 


§  801.] 


TESTAMENTARY    USES,  TRUST    ESTATES,  ETC. 


11  GO 


a  power  to  devise  should  appear  by  express  language.  But 
where  an  intention  to  execute  a  power  is  implied,  the  implica- 
tion must  be  reasonably  clear  and  manifest.  If  it  is  doubtful 
whether  the  will  was  executed  to  carry  into  effect  the  power, 
the  doubt  may  nullify  the  alleged  execution  of  the  power.^ 

But  if  upon  the  whole  will  it  is  apparent  that  the  testator 
intended  to  execute  a  power  of  appointment  of  which  he  was  the 
donee,  a  general  or  residuary  devise  will  be  sufficient,  though 
there  may  be  no  reference  in  the  will  to  the  character  or  the 
existence  of  the  power  in  question.- 

Independently  of  statutes  by  which  a  will  passes  lands  ac- 


1  We  cannot  do  better  in  this  place 
than  to  quote  the  remarks  of  Judge 
Story  contained  in  Biagge  v.  Miles,  1 
Story,  C.  C.  i26,  on  page  446.  "  The 
authorities  upon  this  subject  may 
not  all  be  easily  reconciled.  But  the 
principle  furnished  by  them,  how- 
ever occasionally  misapplied,  is  never 
departed  from,  that  if  the  donee 
of  the  power  intends  to  execute  it, 
and  the  mode  be  in  other  respects 
unexceptionable,  that  intention,  how- 
ever manifested,  wlietlier  directly  or 
indirectly,  positively  or  by  just  im- 
plication, will  make  the  execution 
valid  and  operative.  I  agree  that 
tlie  intention  to  execute  the  power 
mast  be  apparent  and  clear,  so  that 
the  transaction  is  not  fairly  sus- 
<;eptible  of  any  other  interpretation. 
If  .it  be  doubtful,  under  all  the  cir- 
cumstances, then  the  douljt  will  |)re- 
vent  the  instrument  from  being  an 
execution  of  the  [K>\vcr.  All  the  au- 
tlioriti(;8  agree  that  it  is  not  neces- 
sary that  the  intention  to  «'xei-ute  a 
I)Ower  should  ai)iH'^ir  by  express 
terms  or  recitals  in  the  instruin<'nt. 
It  is  suflicient  that  it  shall  apiH-^ir  by 
words,  acts  or  deeds  deriioiist rating 
the  intention." 

2Bull»Tdick   V.  Wright  (In<l.,  IHl(H). 

47  N.  K.  li.  U.'A:  Payne  v.  .Iohnw)n.95 

Ky.  17.1,  21  S.  \V.  IL  L';'.H;  liiehardson 

V.  Woo<ibury,  Vi  Me.  200;  lliLssjun  v. 

71 


Hazen,  1.5(5  Mass.  93,  94,  30  N.  E.  R. 
469:  Cummings  v.  Bartlett,  149  Mass. 
243,  248:  Sevvell  v.  Wilner,  133  Mass. 
134;  Durant  v.  Smith,  159  Mass.  229, 
233;  Kimball  v.  Bible  Society,  65  N.  H. 
139,  33  Atl.  R.  83:  Emery  v.  Haven 
(N.  H.,  1898),  35  Atl.  R  940;  Cooper 
V.  Haines,  70  Md.  282,  17  Atl.  R  79; 
Den  V.  Crawford,  3  Halst.  (N.  J.  Eq.) 
103:  White  v.  Hicks,  33  N.  Y.  392, 393; 
Hutton  v.  Benkard,  92  N.  Y.  301,  803; 
Bigelow  v.  Tilden,  18  Misc.  R  689, 
43  N.  Y.  S.  858:  Kibler  v.  Hover,  10 
N.  Y.  S.  375:  Austin  v.  Oakes,  117 
N.  Y.  577,  28  N.  E.  R,  193;  Lock  wood 
V.  Mildeberger,  53  N.  E.  R  803,  1.59 
N.  Y.  181:  Jackson  v.  Delancey,  13 
Johns.  (N.Y.)  537;  Johnston  v.  Knight, 
117  N.  C.  122,  23  S.  E.  R  92;  Dru«i- 
dow  V.  Wilde,  63  Pa.  St.  170;  How- 
ell's Estate  (Pa.,  1898),  39  Atl.  R  966; 
Hannav.  Ludwig.  73  Tex.  .37:  Machir 
v.  Funk,  90  Va.  284,  18  S.  E.  R  197; 
Biagge  v.  Miles,  1  Story,  C.  C.  426.  466; 
Lee  V.  Simi>s(.n,  134  U.  S.  .572, 10  Sup. 
Ct.  631;  I)(K>  V.  Koake,  2  Bing.  497; 
Wildbore  v.  ( Jregory,  L.  R  12  E<|.  482; 
Carte  v.  ("arte,  3  Atk.  171;  .Stillnmn 
V.  Weedon,  16 Sim.  2<»;  I'alch  v.  .Shore, 
2  Dr.  &  Sni.  .598;  Ilodsden  v.  Dancer. 
16  W.  R  1101;  I'almer  v.  Newell,  20 
Be4iv.  38;  In  re  Merritt,  I  S\v.  &  Tris. 
112.  ^'o»(/r</.  .Miner  v.  ( iainbrill,  71  Md. 
3(1,  IH  At!.  U.  tltl;  .Matteson  v.  (iod- 
dard,  17  R  I.  299,  21  Atl.  Ryi4;  Uar- 


1170  LAW    OF    WILLS.  [§  802. 

quired  after  its  execution,  if  the  testator,  at  the  time  of  the  exe- 
cution of  his  Avill,  had  no  Linds  except  those  over  which  he  had 
a  jyower  of  appointment,  upon  which  the  general  devise  could 
operate,  it  would  execute  the  power,  as  he  could  not  he  pre- 
sumed to  have  after-acquired  land  in  mind.  If  there  is  land 
iipon  which  the  general  devise  can  operate,  iho, irrima  facie  pre- 
sumption is  that  it  shall  operate  on  that,  and  it  will  require 
some  evidence  of  an  intention,  though  usually  slight  evidence 
is  sufficient,  that  the  testator  meant  the  general  devise  to  oper- 
ate in  execution  of  the  power.^  The  statute  by  which  it  is 
enacted  that  a  will  shall  be  construed  to  take  effect  as  though 
made  immediately  before  the  death  of  the  testator  is  applicable 
to  powers.  So,  if  a  general  or  residuary  devise  is  enough  to 
execute  a  power  of  appointment  which  Avas  in  existence  when 
the  will  was  made,  it  may  be  sufficient  also  to  execute  a  power 
which  was  created  and  conferred  upon  the  testator  after  the 
execution  of  the  will,  which  purports  to  be  an  execution  of  it.^ 
§  802.  Equitable  remetlies  for  the  iioii-execiitiou  of  powers. 
A  mandatory  power,  or  one  whose  execution  is  obligatory  upon 
the  donee,  is  regarded  in  equity  as  a  trust.  A  general  power 
will  not  be  executed.  If  the  donor  in  creating  a  special  power 
confers  an  uncontrollable  discretion  to  exercise  it  or  not  on  the 
donee  as  he  sees  proper,  equity  will  not  interfere  in  case  the 
donee  dies  without  executing  it,^  But  a  mandatory  power 
which  must  be  exercised  in  any  event  is  differently  regarded. 
It  is  regarded  as  a  power  in  trust.  And  the  remedy  in  equity 
for  the  non-execution  of  a  mandatory  power  which  is  equiva- 
lent to  a  power  in  trust  is  the  same  as  for  the  enforcement  of 
a  trust.  The  execution  of  a  power  in  which  third  persons  are 
interested  will  be  compelled  in  equity.  And  equity  will  not 
permit  the  negligence  of  the  donee  of  such  a  power,  his  mis- 
taken understanding  of  his  duties,  or  his  accidental  failure  to 

rard  CoL  v.  Balch,  171  IlL  444.  49  N.  2  Carte  v.  Carte,  3  Atk.  174;  Colfield 
K  R.  543;  Pease  v.  Pilot  Knob,  etc.  v.  Pollard,  3  Jur.  (N.  S.)  1203;  Hods- 
Co.,  49  Mo.  124.  den  v.  Dancer,  16  W.  R  1101;  W.  N. 
1  Doe  d.  Caldecott  v.  Johnson,  7  M.  1868.  p.  22.    Contra,  Lepley  v.  Smith, 
&  Gr.  1047;  Clere's  Case,  6  Co.  176;  13  Ohio  Cir.  Ct.  R.  189. 
Ex  parte  Caswall,  1  Atk.  559;  Hoste  3  in  re  Eddowes,  1  Dr.  &  Sm,  395. 
V.  Blackman,  6  Mad.  190;  Sugden  on  See  ante,  p.  624. 
Powers,  432;  4  Cruise,  212;  Coke  Litt., 
271  B. 


§  S02.]  TESTA3IEXTAKT    USES,  TKUST    ESTATES,  ETC.  11 71 

execute  the  power,  to  prejudice  those  who  are  to  benefit  by  lits 
exercise.  The  power  will  be  regarded  as  a  trust,  and  in  case 
the  donee  has  not  performed  his  duty  the  court  will  perform  it 
for  him  in.  order  that  the  rights  of  the  beneficiaries  may  be 
protected.  And  though  the  donor  of  the  power  has  not  made 
an  express  gift  of  the  property  to  the  objects  of  the  power  in 
default  of  an  appointment,  a  gift  to  them  will  be  implied  under 
the  presumption  that  the  donor  did  not  intend  that  the  bene- 
ficiaries should  be  disappointed  by  the  neglect  or  caprice  of 
the  donee.^  In  case  of  the  death  of  the  donee,-  or  his  incom- 
petency before  he  has  executed  the  power,  another  person  will 
be  appointed  by  the  court  to  act  for  the  donee.*  The  execution 
of  the  power  by  the  court  in  the  case  of  the  death  of  the  donee 
■will  be  retrospective  as  of  the  date  at  which  it  ought  to  have 
been  originally  executed. 

The  sole  object  of  the  court  in  executing  a  power  in  trust 
which  is  contained  in  a  will  should  be  to  carry  out  the  inten- 
tions of  the  testator.  If  the  testator  has  laid  down  one  or  more 
rules  for  the  ouidance  of  the  donee  or  trustee  which  the  latter 
has  not  followed,  the  court  will  follow  these  rules.  Accord- 
infrlv,  if  the  donor  has  indicated  the  manner  in  which  he  wished 
the  donee  to  act,  the  objects  who  are  to  benefit  by  the  execu- 
tion of  the  power  and  the  proportions  in  which  they  are  to  take, 
and  has  eriven  directions  for  the  oujdance  of  the  donee  which 
limit  and  control  his  execution  of  the  power,  the  power  can  be 
executed  by  the  court  as  well  as  by  the  donee.*  Thus,  in  a  case 
where  trustees  were  directed  to  distribute  a  fund  among  "the 
friends  and  relations  of  the  donor  where  they  should  see  most 
necessity  and  as  they  should  consider  most  just  and  equitable," 
the  court  took  it  upon  itself  to  act,  where  the  trustees  refused 

1  See  cases  cited  ante,  g  409.  90:  Reid  v.  Rciil.  2.")  Beav.  409;  Ilewet 

2  UanJinj^  v.  Glyn,  1  Atk.  (1705).  409.     v.  Ilewet.  2  Etleu.  3;J2. 

'Doyley  v.  Attonii'V-<iem*nil,  4  Via.  *  I't'lcr  v.  Beverly,  10  Peters  (U.  S.), 

Abr.  4S."i,  pi.  10.  2  Eq.  Ca^'s  Abr.  194,  5(51;  Blake  v.  Hawkins  »«  U.  S.  'M'i, 

pL  15;    Caplin'.s  Will,  43  L.  J.  (N.  S.)  320;  Warner  v.  Lon;,'  Island  Co.,  109 

578;  Pier-y.n  v.  Garnett,  2  Bro.  C.  C.  U.  S.  355.357;  Barker  v.  Keilly,4  Del. 

5i8,  45;  Wards  v.  GroveH,  2  De  Gex.  V.  ('\\.  HO;  Gihbs  v.  Marsh,  2  Met.  (Muss.) 

&J.  210;  Izod   V.   Izod,  32  B«-av.  242.  243,252;  In    re  Croft,  102  Mas.s.  22; 

And  see  caseH  cited  untler  J;;i  792-795.  OsK<H^»d   v.   Iranklyn,   2  Jolins.   Cli. 

Hee  also  Cruwys  v.  Coletnan.  9  Ven  (N.   Y.)   19;  Stewart   v.   Keating,  3G 

819;  WuIhH  v."WallinKer,  2  l{iis.s.  &  N,  Y.  S.  913,  15  Misc.  R  41. 
My.  78;  Fordyce  v.  Bridge:*,  10  Beuv. 


1172 


LAW    OF    WILLS. 


[§  802. 


to  act.  The  word  "  rriciuls  "  was  construed  to  be  equivalent 
to  "  relations,"  and  the  case  was  referred  to  the  master  to  as- 
certain how  the  trust  fund  might  be  most  equitably  and  justh^ 
divided.^  For,  where  the  donor  points  out  the  persons  who  are 
to  be  the  objects  of  the  power,  even  thougli  the}'^  are  merely 
designated  as  members  of  an  indefinitely  defined  class,  and  in- 
dicates to  what  extent  they  are  to  be  benefited,  the  court  will 
find  no  difficulty  in  ascertaining  the  precise  intentions  of  the 
donor."  Where  the  donor  points  out  the  persons  who  are  to  be 
the  a])poiutees  of  the  power  and  to  Avhat  extent  they  are  to  be 
benefited,  the  court  will  have  no  difficulty  in  ascertaining  the 
precise  intentions  of  the  donor,  and  if  the  donee  dies  without 
having  executed  the  power  in  trust,  the  court  of  equity  vnW 
by  implication,  under  the  maxim  which  assumes  that  to  have 
been  done  which  ought  to  have  been  done,  raise  a  gift  in  de- 
fault of  appointment  among  those  persons  who  were  to  have 
been  the  objects  of  the  power.'   For  the  intention  of  the  donor 

judgment  as  tvell  as  the  trustees,  and 
^vhen  informed  by  evidence  of  the 
necessity  can  judge  wliat  is  equitable 
and  just  in  this  necessity."'  This  case 
lias  certainly  carried  the  power  of 
.equity  to  exercise  a  discretionary 
j)Ower  very  far. 

-•'Where  there  appears  a  general 
intention  in  favor  of  the  individuals 
of  a  class  to  be  selected  by  another 
person,  and  the  particular  intention 
fails  from  that  selection  not  being 
made,  the  court  will  carry  into  effect 
the  general  intention  in  favor  of  the 
class.  Where  such  an  intention  ajv 
pears,  the  case  arises  of  the  power 
being  so  given  as  to  make  it  the  duty 
of  the  donee  to  execute  it;  and,  in 
such  case,  the  court  will  not  permit 
the  objects  of  the  power  to  suffer  by 
the  negligence  of  the  donee,  but  fast- 
ens upon  the  property  a  trust  for 
their  benefit"  Burrough  v.  Philcox, 
5  My.  &  Cr.  72;  Sugden  on  Powers, 
pp.  341-421. 

^Fenwick  v.  Greenwall,  10  Beav. 
412:  Reid  v.  Reid,  25  Beav.  469;  Wood- 
cock v.  Rennock,  4  Beav.  190;  Jef- 
freys Trusts,  L.  R.  14  Eq.  136;  Derse 


iGower  v.  Mainwaring,  2  Ves.  87. 
In  this  case  Lord  Chancellor  Hard- 
wicke  said :  "  What  differs  this  from 
the  cases  mentioneil  is  tliis :  that  there 
is  a  rule  laid  down  for  the  trust. 
W^herever  tiiere  is  a  trust  or  power 
(and  this  is  a  mixture  of  both), 
whether  arising  on  a  legal  estate  or 
reserved  to  be  exercised  by  trustees 
according  to  their  discretion,  I  do 
not  know  the  court  can  put  them- 
selves in  the  place  of  those  trustees 
to  exercise  that  discretion.  Where 
trustees  have  power  to  distribute 
generally  without  amj  object  pointed 
out  or  rule  laid  down,  the  court  in- 
terposes not,  unless  in  case  of  a  char- 
ity, which  is  different,  the  court  ex- 
ercising a  discretion  as  having  the 
general  government  and  regulation 
of  charity.  But  here  is  a  rule  laid 
down  (and  the  word  '  friends '  is  syn- 
onymous with  '  relations,'  otherwise 
it  is  absurd).  The  trustees  are  to 
judge  of  the  necessity  and  occasion 
of  the  family,  the  court  can  judge  of 
such  necessity  of  tlie  family.  That  is 
a  judgment  to  be  made  on  facts  ex- 
isting, so  that  the  court  can  make  the 


§  802.]  TESTAMENTARY   USES,  TRUST   ESTATES,  ETC.  1173 

of  the  power  governs  the  construction  of  testamentary  powers, 
and  in  furtherance  of  this  the  courts  will  vary  the  form  of  exe- 
cuting the  power,  and,  as  the  case  may  require,  either  enlarg(? 
what  is  apparently  a  limited  power  to  a  general  power,  or  cut 
down  a  power  to  serve  a  particular  purpose.^ 

And  if,  on  all  the  circumstances,  it  is  the  intention  of  the 
testator  that  a  gift  by  implication  shall  be  given  to  the  objects 
of  the  power  in  default  of  an  appointment,  and  the  testator  has 
not  indicated  how  much  each  one  of  the  objects  is  to  take, 
equity  will  direct  an  equal  division  among  all  the  appointees 
under  the  equity  rule  that  equality  is  equity.'  This  would  be 
the  case  where  a  distribution  was  directed  to  be  made  by  the 
donee  among  a  class  of  persons,  each  of  whom  was  to  receive 
a  share  in  proportion  to  his  worth  or  necessity.^ 

A  distinction  is  made,  in  the  event  of  a  total/ailure  to  exercise 
a  power,  between  the  case  of  an  out  and  out  gift  to  a  class  of 
persons  vnth  a  power  in  some  tJdrd  person  to  appoint  in  what 
proportion  each  member  of  the  class  shall  take,  and  a  mere 
direction  to  the  donee  of  a  power  to  appoint  by  his  will  the 
property  given  to  him  among  the  class.  In  the  former  case, 
where  the  donee  fails  or  neglects  to  execute  the  power,  and 
there  is  no  disposition  of  the  property  to  strangers  in  default 
of  an  appointment,  the  gift  is  regarded  as  a  vested  gift  to  the 
members  of  the  class  who  are  limng  at  the  death  of  the  testator^ 
sui)ject  to  being  devested  or  diminished  by  the  subsequent  exe- 
cution of  the  power  by  the  donee,  and  upon  a  total  default  of 
an  a|)pointment  the  fund  will  be  equally  divided  among  all 

V.  Derse.  79  N.  W.  R  44;  Cox  v.  Wills,  Ca.  Ab.  146;  Sahishury  v.  Denton.  3 

4'.>  N.  J.  Va\.  1:!0.  22  At).  R  7!t4;  Smith  K.  &  J.  .VJO,  5;{.S;  Power  v.  Quely,  L. 

V.  Kioyil,  140   N.  V.  :«?,  35  N.  E.  R.  R  4  Ir.  20;  Fenwick  v.  GretMiwall,  10 

GOG;  Hrierly  v.  Hrierly,  12  Rep.  151;  Beav.  412.     See  cases  a/iff,  p.  (523. 
McCaniant  v.  Nuckolls.  H5  Va.  331,        ^  In  one  or  two  of  the  states  of  the 

12  S.  R  R  100.     This  is  the  rule  l)y  Union  it  is  provided  by  statute  that 

Ht^itute  in  some  states  where  an  im-  if  the  trustee  of  a  j)Ower  with  the 

perative  trust  is  rreateil  for  the  iKMie-  rijjlit  of  seleetion  shall  <Ue   lenvin;; 

litof  a(;lass  whifh  the  rlonee  nej^lects  the  jMjwer  un<'xecuted,  its  exetnition 

to  exeunt*'.     In  re  Jones,  M4  Wis.  405,  shall  be  adjudp'd  for  tlm  benelit  of 

54  N.  W.  R  !M7.  all  persons  ilesi^^natcd  as  the  objects 

14  K«?nt,  (>jm.,  p.  330;  Sudden   on  of  the  |Mi\ver  to  take  ecpialiy.     iJerse 

Powers,  pp.  452.  453.  v.  Derse  (.Minn.,  IS'JS),  7U  N.  W.  R  44. 

^  Doyley  V.  Attorney  (Jcncral,  2  Ivj. 


IITJ:  LAW    OF    WILLS.  [§  S02. 

members  of  the  class  who  were  living  at  the  death  of  the  tes- 
tator.^ 

But  where  there  is  no  gift  in  express  terms  in  the  will  to  the 
class  directly,  but  only  a  power  of  appointment  is  created  di- 
recting the  donee  to  divide  by  will  property  among  the  class, 
onl}'  those  persons  are  objects  of  the  power  and  take  in  default 
of  an  appointment  who  survive  the  donee  when  his  will  be- 
comes effective  at  his  death.-  In  the  latter  case  the  court  will 
imply  an  intention  to  give  the  property,  on  a  default  of  an  ap_ 
pointment,  to  those  persons  only  among  whom  the  donee  might 
have  distributed  thej>roperty,  and  on  the  failure  or  the  neglect 
of  the  donee  to  exercise  the  power  it  will  be  exercised  accord- 
ingly among  those  persons.  Where  property  is  given  to  A.  for 
life,  with  a  power  in  him  to  devise  the  same  to  his  children,  but 
no  express  devise  to  'the  latter,  nor  any  devise  to  them  or 
strangers  in  default  of  an  appointment,  the  court  will  execute 
the  power  among  a  class  composed  of  A.*s  children  living  at 
his  death,  and  not  among  the  children  of  A.  living  at  the  death 
of  the  donor  of  the  power.  The  class  will  be  ascertained  and 
the  power  executed  by  the  court  upon  a  default  in  its  execu- 
tion by  the  donee  as  of  the  date  of  his  death,  excluding  from 
its  operation  all  persons  who,  though  the}^  would  have  been 
members  of  the  class  had  they  survived,  have  died  before  the 
donee.^ 

The  rules  just  stated  are  confined  to  mandatory  powers  or 
powers  in  trust.  "Where  not  only  the  time  and  manner  of  ex- 
ercising the  power  are  left  to  the  donee,  but  also  the  determina- 
tion of  the  question  whether  the  power  shall  he  exercised  at  all  is 
relegated  to  the  uncontrolled  discretion  of  the  donee,  equity 
will  not  interfere.  Where  this  is  left  to  the  uncontrollable 
discretion  of  the  donee  or  trustee,  equity  will  not  attempt  to 
control  that  which  the  donor  intended  should  remain  uncon- 
trolled.    If,  then,  the  donee  is  vested  with  an  absolute  discre- 

iStewartv.  Keating,  15  Misc.  R.  44.  ton.  2  Jac.  &  W.  431;   Lambert  v. 

3G  N,  Y.  S.  913.     Cf.  Doe  v.  Martin,  4  Thwaites,  L.  R.  2  Eq.  151. 

T.  R.  39;  Cunningham  v.  Martin,  1  3  Doyley  v.  Attorney-General,  2  Eq. 

Ves.  174.  Ca.  Ab.  194:  Witts  v.  Bodington,  3 

2Melflun  V.  Devlin.  20  Misc.  R.  56,  Bro.  C.  C.  95;  Cruwys  v.  Coleman,  9 

45  N.  Y.  S.  333:  Walsh  v.  Wallinger,  Ves.  319,  325;  Birch  v.  Wade,  3  Ves. 

2  Russ.  &My.  78;  Kennedy  v.  Kings-  &  B.  95;  Finch  v.  Hollingsworth,  21 

Beav.  112. 


§  802.] 


TESTAMEXTAKY    TSES,  TRUST    ESTATES,  ETC. 


11 


iO 


tion  not  only  as  to  the  manner  of  exercising  the  power,  but  to 
choose  whether  he  shall  or  shall  not  exercise  it  at  all,  equity 
will  not,  in  the  absence  of  bad  faith  on  his  part,  compel  him  to 
exercise  it.^  This  rule  is  applicable  to  the  execution  of  a  dis- 
cretionary power  of  sale,-  or  to  a  power  to  alter  investments,' 
or  to  divide  property  among  persons  nominated  by  the  donee, 
or  to  apply  income  to  a  particular  purpose  in  such  amounts  as 
may  be  suggested  by  the  best  judgment  of  the  trustee.^ 

So  where  a  donee  of  a  power  or  a  trustee  has  an  uncontrol- 
lable discretion  to  apply  any  or  all  of  the  trust  property  to  the 
support  of  a  beneficiary,  equity  will  not  interpose  where  the 
donee  has  exercised  the  power  honestly  and  in  good  faith.* 
Where  the  trustee  has  720  disorfion  as  to  the  amount  wJtlch  is  to 
he  applied  to  the  support  of  the  beneficiary,  and  the  discretion, 
is  unlimited  only  so  far  as  the  mode  and  the  time  of  the  pay- 


1  Mitchell  V.  Denson,  29  Ala.  327; 
Wilkinson  v.  Getty,  13  Iowa,  157; 
Hughes  V.  Washington,  72  111.  84: 
Lambert  v.  Harvey,  100  111.  338;  Van 
Brocklin's  Estate,  74  Io%va.  412.  38  N. 
W.  R  119;  Howard  v.  Carpenter.  11 
Md.  259;  Venable  v.  Trust  Co.,  74  :Md. 
187,  21  AtL  R.  704;  Greenough  v. 
Wells,  10  Cush.  (Mass.)  571,  577;  El- 
dredge  V.  Heard,  106  ]Mass.  579,  592; 
Olney  v.  Balch,  154  Mass.  318,  322; 
Gibbs  V.  Marsh,  2  ISIet.  (Mass.)  243, 
252;  Battelle  v.  Parks,  2  Midi.  531, 
535;  King  v.  Merritt,  G7  :\rich.  194, 
A  testator  devised  to  his  wife  all  his 
property  for  her  natural  life,  with 
full  |X)wer  and  autliority  to  devise 
and  bequejith  the  same,  by  will,  to 
such  of  his  sons  as  shall  be  kindest 
to  her,  but  such  will  not  to  become 
0|)erative  until  after  her  death.  Held, 
that  she  had  absolute  power  to  de- 
vise or  convey  the  projierty  to  some 
or  ail  of  liis  wms.  Watson  v.  Watson, 
51  S.  W.  R  1105.  See  Jilso  sustaining 
t«ixt,  Merritt  v.  ("ortifs,71  Hun,  012, 
24  N.  Y.  S.  5f)l;  Lindo  v.  Murray.  3(5 
N.  Y.  S.  331.  91  Hun,  335;  Hilleu  v. 
L'«;lin,  144  N.  Y.  3(55;  In  re  largo's 
Hst^ite,  45  N.  Y.  S.  732:  Itighter  v. 
Riley  (W.  Vji..  Ib97;,  27  S.  E.  K.  357; 


Dillard  v.  Dillard  (Va.,  1896),  21  S.  E. 
R.  669. 

-  Tempest  v.  Lord  Camoys,  L.  R.  21 
Ch.  D.  571. 

3  Brown  v.  Brown,  L.  R  29  Ch.  D. 
889. 

4  See  also  Pink  v.  De  Thuissey,  3 
Mad.  157;  Tabor  v.  Brooks,  L.  R  10 
Ch.  D.  273;  Marquis  v.  Murray,  L,  R 
16  Ch.  D.  161;  Brown  v.  Higgs,5  Ves. 
501;  White  v.  Crane,  18  Beav.  571; 
Hart  V.  Tribe,  19  Beav.  149:  French 
V.  Davidson,  3  Mad.  396:  Costabadie 
V.  Costabadie,  6  Hare,  410. 

5  In  re  Balke,  L.  R.  29  Ch.  D.  021; 
Tabor  v.  Brooks.  L  R.  10  Cli.  D.  372; 
Tiffany  v.  Monroe  (R,  I.,  1897).  35  Atl. 
R  302;  Reid  v.  Patterson,  44  N.  J. 
Eq.  211.  Where  one  conveys  proi> 
erty  in  trust,  to  be  held  for  the  bene- 
fit of  sucli  "  charitable  corporations  " 
as  he  may  appoint  by  will,  a  testa- 
mentary (linn-tion  to  liis  executor, 
an  individual,  to  expend  a  certain 
sum  in  [>nivi(ling  free  excursions  for 
lK)or  childn-n  is  v;ilid,  ami  the  exec- 
utor may  give  tii(>  iiKHiey  to  a  cliari- 
tiiblt!  corporation  to  bt>  so  ('.xiwiidcd. 
Loring  v.  Wilson  fiMass.),  54  X.  M  R 
502:  Loring  v.  Hiair,  id.  And  <j;//c, 
f-  790. 


117G  LAW    OF    AVII.I.S.  [§  803. 

ment  of  the  income  is  concerned,  equity  will  exercise  its  power 
to  procure  a  strict  perforuuuice  of  tlie  trust.^  And  the  court 
may  institute  an  inquiry  as  to  how  much  is  needed  for  the 
carrying  out  of  the  trust,'  or  the  income  of  the  trust  fund  may 
be  equally  divided  among  the  beneficiaries.' 

§  803.  The  fraudulent  and  improper  and  excessive  exe- 
cution of  powers. —  A  general  power  of  appointment  by  will 
enables  the  donee  to  devise  the  property  to  any  person  who 
may  have  the  capacity  to  take.*  Under  a  special  power  to  ap- 
point by  will,  the  donee  is  limited  to  the  objects  or  class  pointed 
out  by  the  donor.*  If  his  selection  is  discretionary,  he  must 
make  it  within  the  range  of  those  persons  who  are  objects  of 
the  special  power.  lie  cannot  set  his  opinion  against  that  of 
the  creator  of  the  power  and  give  to  others  whom  he  may  think 
are  more  worthy.  Thus,  a  power  to  appoint  among  children 
as  a  class  is  not  validly  exercised  by  an  appointment  among 
grandchildren.^  But  a  power  to  appoint  among  issue  is  well 
executed  by  a  devise  to  issue  of  any  degree  of  relationship.'^ 
In  general,  it  may  be  said  that  the  donee  of  a  power  must  act 
in  the  most  perfect  good  faith,  and  with  the  sole  object  of 
carrying  out  the  purpose  and  intention  of  the  creator  of  the 
power.^  The  donee  of  a  power  must  not  exercise  it  for  a  cor- 
rupt purpose,  either  by  Avill  or  by  deed.     The  donee  will  not 

1  In  re  Weaver,  L.  R.  21  Ch.  D.  615.  dispose  of  the  same  in  sucli  manner 

-  Maberly  v.  Turton,  14  Ves.  499.  as  she  may  desire,"  "  with  power,  also, 

3  Equity  will  interfere  to  enjoin  a  to  devise  the  same,  at  her  death,  to 
sale  of  land  which  is  not  conducted  my  children,  or  either  of  them,  in 
by  the  executor  in  accordance  with  such  manner  as  she  may  deem  best," 
the  directions  of  the  testator,  on  the  and  at  her  death  the  property  re- 
application  of  legatees  whose  inter-  maining  to  go  to  the  children.  Held, 
ests  will  suffer  by  reason  of  the  mode  that  the  wife  could  devise  only  to 
in  which  the  sale  is  being  conducted,  the  children.  Smith  v.  Hardesty,  41 
Napier  v.  Napier,  89  Ga.  48,  14  S.  E.  Atl.  R.  (Md.,  1898),  788. 

R.  870.  ■^  Freeman  v.  Parsley,  3  Ves.  431 ; 

4  4  Kent.  322;  Hicks  v.  Ward,  107  Crist  v.  Schamk,  140  lud.  277,  282,  45 
N.  C.  392.  N.  E.  R.  190;  Drake  v.  Drake,  32  N. 

SHuber  v.  Free,  12  Ohio  Cir.  Ct.  R.  E.  R.  114,  134  N.  Y.  220;  ante,  %  674; 

333;  Austin  v.  Oakes,  117  N.  Y.  577,  Cruse  v.  McKee,  2  Head  (Tenn.),  1. 

23  N.  K  R  193;   Schwartz's  Estate,  Cf.  Thoriugton  v.  Hall,  21  S.  R.  (Ala., 

168  Pa.  St.  204,  31  Atl.  R.  1085.  1897),  335. 

« 2  Sugden  on   Powers,   253.     See        **  Aleyn  v.  Belchier,  1  Eden  (1758), 

ante,  %  547.     A  testator  devised  all  132;  In  re  Huish's  Charity,  L.  R.  10 

his  property  to  his  wife  "  during  her  Ch.  5. 
natural  life,  witli  power  to  sell  and 


§  803.]  TESTAMENTARY    USES,  TRUST    ESTATES,  ETC.  11 77 

be  permitted  to  employ  a  discretion  which  he  may  possess  in 
the  execution  of  the  power  for  his  own  benefit.  If,  to  procure 
a  benefit  to  himself,  he  shall  attempt  to  execute  his  power 
fraudulently,  his  appointment  will  be  set  aside  as  invalid,  and 
a  court  of  equity  will  interpose  for  the  purpose  of  setting  aside 
tlie  fraudulent  execution  of  a  povjer  which  is  purely  discretion- 
ary, where  it  would  not  compel  the  exercise  of  the  discretionary 
power.^  So,  if  the  donee,  who  has  a  discretionary  power  to 
divide  an  estate  among  several  persons,  shall  devise  more  to 
some  than  to  others,  in  return  for  a  consideration  from  those 
who  are  favored,  the  appointment  being  in  fraud  of  the  power 
will  be  void  in  equity  and  the  fund  will  be  equally  divided 
among  those  who  are  the  objects  of  the  power.^  The  part 
which  is  tainted  with  fraud  will  be  void  in  toto  unless  it  shall 
be  impossible  to  place  all  the  parties  to  the  power  in  their  orig- 
inal position,  or  unless  the  person  to  whom  the  improper  ap- 
pointment has  been  made  has  parted  with  the  property  for  a 
valuable  consideration  to  a  hona  fde  purchaser  who  is  ignorant 
of  the  fraud. ^ 

A  special  power  of  appointment  by  will,  in  such  manner  and 
with  such  limitations  as  the  donee  may  select,  is  validly  exer- 
cised by  a  devise  in  trust  for  the  objects  of  the  power,*  and  by 
the  gift  of  a  contingent  estate  as  well  as  by  a  vested  estate.* 
So  a  power  of  appointment  over  real  estate  in  favor  of  chil- 
dren is  well  exercised  by  an  appointment  to  trustees  in  trust 
for  sale,  and  to  hold  the  proceeds  in  trust  for  the  objects  of  the 
])0\ver;  and  the  trustees  so  appointed  by  the  donee  of  the  power 
will  have  the  legal  estate  vested  in  them,  and  will  be  the  proper 
l)ersons  to  sell.^   Whether  and  how  far  an  appointment  is  void, 

1  Guion  V.  Smitli.  42  Miss.  77;  In  re  <  Maitland  v.  Baldwin.  70  Hun.  267, 

Vanderbilt,    20    Hun    fN.    Y.).    520;  24  N.  Y.  S.  2!t;  In-^ersoll's  Estate.  3 

Williams'   Apixial,   7;i    Pa.    St.    249;  Pa.  Dis.  Co.  Ct.  It.  :{!»!»;  Fottoral's  Es- 

Kerr  v.  Verner.  GO  Pia.  St.  .'{20;  Kaloon  tate.  2  id.  140;  Frcar  v.  Pu^sloy.  0  Misc. 

V.  Flaiiih-ry  (Minn.,   WdH),  76  N.  W.  It.  :ilO.  'M)  N.  Y.  S.  I4!>.     ('out to.  Pcj*- 

R  'J'ti.  jMjr's  AinH'ul,  120  Piu  St  'S.i'),  VA  Atl.  K. 

^  D.-K'tnan  v.  D*>;<nian  (Ky..  1800),  :J4  029;  Myers  v.  S.  1).  Trust  Co.,  7:J  Md. 

S.  W.  R.  rj2:{;  (.'arver  v.  Itiflianls,  27  41.1.  21  Atl.  K.  r,H. 

Beav.  4HH;  Held  v.  ll.Md.2:.  IL-av.  409;  aHillcii  v.  Isclin,  144  N.  Y.  :tO.-),  :i'.» 

}JeddwH  V.  Pu«li.  20  lituiv.  407.  411;  N.  E.  li.  :!C.M. 

l)aul*eny  v,  Corkburn,  1  Mer.  026.  «  In  ro  Pa^ot.  07  I^aw  J.  Cli.  Ml.  1 

'  Mf(^ueon  v.  Kaniuliar,  1 1  Ves.  407;  Cli.  290,  7H  J  jiw  T.  (N.  S.)  72,  40  VVkly. 

Palni.ir  v.  VVIiwhT.  2  Jiji.  &  IJ.».  18;  K.  ;J2H;  M.dlor,   In  ro,  id.;  M.-llor  v. 

Hall  V.  .M(jntague,  H  L.  J.  Cli.  107.  M.-ilor,  id. 


1  1  7S  LAW    OF    WILLS.  [§  804, 

when  the  donee  has  exceeded  the  limitations  of  the  power  by 
appointing  to  those  who  are  strangers  to  it,  or  by  appointing  a 
larger  sum  than  he  had  the  right  to  do,  depends  on  the  ability 
of  the  court  to  separate  the  proper  part  of  the  appointment 
from  that  which  is  invalid.^ 

§  804.  The  illusory  execution  of  powers, —  At  common  law 
a  power  to  distribute  a  sum  of  money  among  several  individ- 
uals or  a  class  by  will  or  deed  in  such  shares  as  the  donee  in 
his  discretion  should  see  fit  was  validly  exercised  if  he  should 
give  a  few  shillings  to  the  majority  of  them  and  ninety-nine 
per  cent,  of  the  fund  to  one  of  the  class.  But  in  the  court  of 
equity,  where  the  real  intention  of  the  donor  of  the  power  was 
sought,  and,  when  it  was  found,  carried  out,  an  appointment  of 
this  sort  was  termed  illusory.  The  nominal  appointment  would 
be  set  aside  and  a  re-division  Avould  be  decreed  by  which  each 
appointee  would  receive  some  substantial  benefit.-  AVhere  the 
power  of  appointment  is  general,  equity  will  not  interfere. 
But  where  the  power  is  special  and  imperative,  so  that  not  only 
must  it  be  exercised,  but  it  must  benefit  only  among  a  limited 
class,  any  execution  of  the  power  by  which  any  member  of  the 
class  is  excluded  from  taking  a  substantial  benefit,  while  others 
are  favored,  will  be  set  aside  in  equity,  and  the  appointee  ex- 
cluded will  be  let  in  to  an  equal  share  in  the  property  with 
the  others.'  And  it  is  not  material  that  the  donee's  discretion 
is  to  divide  as  he  may  see  jit  and  jprojper^  for  his  discretion  must 
be  exercised  in  2i  proper  a/nd  honest  manner,  having  in  mind  the 
amount  and  character  of  the  estate,  the  conditions  of  all  the 
parties  and  the  relations  of  the  appointees  to  the  donor  of  the 
power.* 

The  presumption  is  that  the  donee  has  properly  exercised 
the  power  and  that  the  execution  conforms  to  the  intention  of 
the  donor.  If  the  donee  has  the  privilege  of  making  an  unequal 
distribution,  equity  will  not,  unless  some  members  of  the  exclu- 
sive class  have  been  altogether  overlooked,  or  the  distribution 
is  grossly  unjust,  or  some  other  indicia  of  fraud  are  present, 

1  See  'post,  %  804.  3  Faloon  v.  Flannery  (Minn.,  1898), 

2  Wall  V.  Thurborne,  1  Vern.  355;  76  N.  W.  R  954;  Clay  v.  Smallwood 
Maddison  V.  Maddison,  IVes.  57;  Cole-    (Ky.).  38  N.  W.  R.  7. 

many.  Seymour,  IVes.  211;  Thrasher  ^Colton  v.  Colton,  127  U.  S.  300, 
V.  Ballard,  35  W.  Va,  524,  14  S.  E.  R.  8  S.  Ct.  1164;  Faloon  v.  Flannery, 
232.  supra. 


§  S05.]  TESTAMENTAKT    USES,  TKUST   ESTATES,  ETC.  1179 

inquire  very  closely  into  the  motives  "which  may  have  prompted 
an  unequal  division.  And  a  division  whose  inequality  may 
have  been  partially  the  result  of  dislike,  anger  or  resentment 
Trill  not  be  set  aside  on  that  account  alone,  if  all  the  members 
•of  the  class  are  included  in  the  appointment  and  the  power  ap- 
pears to  have  been  executed  in  substantial  conformity  with  the 
intention  of  the  donor.^ 

§  805.  The  extinguishment  of  powers. —  A  general  power 
of  appointment,  the  exercise  of  which  is  to  benefit  the  doneo 
exclusively,  may  be  released  by  him  to  the  owner  of  the  legal 
estate.  This  is  so  whether  the  power  is  en  gross  or  collateral, 
for  upon  the  release  of  the  donee  it  is  forever  extinguished  as 
to  him.  If  the  power  is  appendant  and  the  donee  conveys  tho 
legal  title  which  he  has  to  the  land,  he  cannot  subsequently 
exercise  the  general  power  of  appointment,  though  he  has  not 
expressly  mentioned  that  in  the  conveyance  of  the  legal  estate.^ 
On  the  other  hand,  a  special  power  which  is  to  be  exercised  for 
the  benefit  of  a  particular  class  of  persons,  being  in  the  nature 
of  a  trust  estate,  cannot  be  extinguished  either  by  the  actions 
of  the  donee  or  by  his  failure  to  exercise  it.''  Thus,  a  collateral 
power  in  a  life  tenant  to  divide  the  remainder  in  fee,  by  his 
will,  among  all  his  children,  being  mandatory,  will  be  construed 
as  creating  a  power  in  trust  for  the  benefit  of  the  children,  and 
the  power  is  of  course  not  extinguished  by  the  death  of  tho 
donee  without  executing  it  by  his  will.  The  same  rule  is  also 
applicable  to  all  powers  which  are  mandator}^  and  also  to  those 
powers  which  are  essentially  mandator}'  as  to  their  exercise, 
but  in  which  the  donee  has  a  discretion  as  to  the  time  and  mode 
of  exercise.  The  reverse  is  the  case  where  the  power  is  discre- 
tionary, not  only  as  to  time  and  mode,  but  also  as  to  whether  it 
shall  ever  be  exercised  or  not. 

So,  generally,  a  power  which  is  to  be  exercised  wholly  at  tho 

1  Vjine  V.  Lord  Dunf^iinnon,  2  Sfli.  elusion  of  tho  others.  In  re  Conner'3 

&  L.  1:50;  Hatchett  v.  Ilatchett.  10:{  Will.  .«)  N.  Y.  S.  $•()().  0  Apji.  Div.  r.i>-k 

Ala.  .")0,  1«  S.  R  .O.IO.  In  EnKliiM.liUKl  ^Su^'Ien  on  Powers,  j).   112;  "VVill- 

in  some  of  the  Btates  it  is  now  ex-  iatns  on  H.  P..  p.  ;510;  Smith  v.  Death, 

pressly    provided     by    statute   that  5.Ma<l.  ;}71;  Albany's  Case,  1  Ite  p.  1U>, 

where   the  terms  of  a  jKiwer  show  W'.Ui. 

that  a  fund  or  any  estjite  is  to  \h'.  dis-  ^ThoriiiKlou  v.  ThoriiiKton,  S2  Ala. 

trib>it<-d  in  pro|M)rti«»ns  as  the  <loni'«j  481).     See  also  diiti;  i.  N(CJ.  for  illustni- 

may  think   |iro|K'r,  the   donee   may  tions  of  tho  rule  of  tho  to.xU 
allot  the  whole  to  any  one  to  tho  ex- 


1180  LAW    OF    WILLS.  [§  SOC). 

discretion  of  the  donee  may  be  extinguished  Ijy  the  lapse  of  time 
or  by  the  want  of  an  object  of  the  power.  Thus,  if  the  appointee 
of  a  power  is  dead,  so  that  the  execution  of  the  power  would 
confer  no  benefit  upon  him,  or  if,  being  alive,  he  has  waived 
the  execution  of  the  power,  particularly  where  it  is  merely  a 
collateral  power,  with  the  legal  title  in  others  than  the  donee, 
it  would  be  unjust  to  keep  the  power  alive  to  the  injury  of 
those  who  have  taken  title  to  the  property  which  is  subject 
to  it,  in  reliance  upon  the  lapse  of  time  and  the  actions  of  the 
jxirties.  Thus,  where  land  is  devised  to  A.  and  B.,  with  a  col- 
lateral power  in  the  executor  to  sell  the  land  for  the  purpose 
of  partition,  or  on  request  without  any  particular  purpose,  the 
power  would  undoubtedly  be  extinguished  by  the  parties  who 
are  interested  making  an  actual  partition  of  the  land  and  its 
subsequent  sale  to  others.  For  generally  a  naked  and  collat- 
eral power  of  sale  is  extinguished  where  there  is  no  longer  any 
necessity  for  its  continued  existence.^  Accordingly,  where  real 
property  was  devised  to  be  held  in  trust  until  certain  devisees 
attained  the  age  of  thirty  years,  when  the  trust  was  to  termi- 
nate, a  power  of  sale  vested  in  the  trustee  to  sell  for  the  pur- 
pose of  paying  debts  or  legacies,  or  to  enable  them  to  make  an 
equitable  division  of  the  land,  was  not  extinguished  in  the 
donee  by  the  devisees  attaining  the  age  of  thirty  years  in  the 
life-time  of  the  testator.  The  exercise  of  the  power  will  inure 
to  the  benefit  of  the  beneficiaries  of  the  trust,  and  it  will  be 
prolonged  though  the  testator  has  expressly  provided  that  when 
each  reaches  the  age  of  thirty  his  share  shall  vest  in  him  abso- 
lutely, free  and  discharged  from  the  trust.^ 

§  806.  TVho  may  be  the  donees  of  a  power. —  It  is  necessary 
that  the  donee  of  a  power  should  have  legal  capacity  to  dispose 
of  his  own  property.  If  the  execution  of  the  power  requires 
the  execution  of  an  instrument,  which  cannot  be  executed  by 
an  infant  because  of  non-age,  he  is  not  a  competent  donee  of  a 
power.'     But  a  married  woman  has  always,  in  equity,  enjoyed 

1  Sites  V.  Eldredge,  4.")  N.  J.  Eq.  632,  87,   17   Atl.   R   240;    Fahnestock  v. 

18  Atl.  R  214.  215:  Hackensack  Bank  Fahnestock,  152  Pa.  St.  56,  35  AtL  R 

V.  Morse,  46  N.  J.  Eq.  161;  Moores  v.  313. 

Moores,  41  N.  J.  Eq.  440;  In  re  Cot-  -  Johns  Hopkins  Universitj' v.  Mid- 
tons  Trusts.  L.  R   19  Ch.  Div.  624;  dleton,  75  Md.  186,  24  Atl.  R  454. 
"Wilkinson  V.  Buist  124  Pa.  St.  253. 16  3  4  Kent  Com.  325;    1  Sugden  on 
AtL  E.  85G;  Fidler  v.  Lash,  125  Pa.  St.  Powers,  181,  211;  2  Wash.  R  P.  652. 


§  so  7.]  TESTAMEISTTAKY    USES,  TRUST    ESTATES,  ETC.  1181 

the  full  capacity  to  exercise  powers  of  appointment  to  the  same 
extent  as  difemmesole^  and  for  this  reason  their  employment 
in  marriage  settlements  has  been  very  common,  prior  to  the 
statutory  modification  of  the  incapacity  of  married  women. 
So  a  corporation  having  power  under  its  charter  to  hold  and 
to  convey  land  may  act  as  the  donee  of  a  power,  if  its  execution 
is  within  the  corporate  powers  which  are  conferred  upon  it  by 
statute. 

§  807.  Powers  void  for  remoteness. —  A  power  is  viewed, 
in  connection  with  remoteness,  as  in  the  nature  of  a  trust,  and 
is  void  if  it  involves  the  creation  of  a  perpetuity  either  by  its 
creation  or  by  its  exercise.  l!s'o  estate  can  be  created  in  equity 
by  means  of  a  power  which  would  be  invalid  at  law  for  re- 
moteness. A  power  may  be  invalid  j^^r  ^se  where  it  is  to  be 
executed  in  the  future,  because  its  execution,  by  which  the  fee 
is  to  be  vested,  may  not  take  place  within  lives  in  being  at  its 
creation,  as  where  a  power  is  to  be  executed  either  by  A.  or 
his  heirs,  or  A.  and  his  issue.  The  execution  of  such  a  power 
may  be  indefinitely  postponed,  or  it  may  never  take  place  at 
all.  Or  the  power  may  infringe  the  rule  because  its  execution 
by  the  donee  may  create  an  estate  which  will  not  vest  within 
the  legal  period.  An  example  of  this  latter  sort  of  power  is  a 
power  in  trustees  to  revoke  contingent  remainders  in  fee  tail 
upon  the  birth  of  each  tenant  in  tail,  and  to  resettle  the  estate 
by  limiting  it  to  the  newly-born  tenant  for  Ms  life,  remainder 
in  tail  to  his  issue,  thus  creating  an  unlimited  scries  of  life  es- 
tates in  the  unborn  posterity  of  the  first  tenant,  and  suspend- 
ing the  vesting  indefinitely.'  The  instrument  wliich  creates 
the  power  and  the  instrument  by  which  it  is  to  be  executed  are 
to  be  taken  together  as  one  in  determining  whether  an  appoint- 
ment is  invalid  as  creating  a  perpetuity  where  the  power  is 
special.  The  objects  of  the  power  must  be  those  who  would 
be  competent  to  take  under  the  instrument  creating  it.-    AVhero 

1 1)iik«!  of  M;irllK>roiiKli  v.  F«irl  Cio  fur  as  tlio  total  number  of  lifi*  ost4itea 

dolphin.  lK'i<ii.  lOl.  crcat^'d   uufltT  l)olh  instruments  ex- 

2  Albert  v.  Albcrt.'W  M<J.  ■'{•VJ;  Dana  vwA  tiiosi-  |)crmittcii  by  tlio  statute. 

V.  Murray,  122  N.  Y.  00 J.     \Vii<-r«-  by  (Jcnc-t  v.   Hunt,  li:{  N.  Y.  \W,  21  N. 

will  ji  lifo  estate  is Kivcn,  with  iK)\vcr  E.   K.   '.<1;   Hir<l    v.   I'icUfonl,  71  Hun, 

toapiKiint  two  or  more  life  fstatr-s,  U2;  Mailiainl   v.   Haiilwin,    7U  Hun, 

the  iX)Wor  ia  invalid  in  New  York  s<i  2t}7,  21  X.  V.  S.  2'J. 


11S2  LAW   OF   WILLS.  [§  807. 

the  coinnion-law  rule  of  perpetuities  is  recognized,  so  tliat 
vesting-  may  be  sus})en(led  for  any  number  of  lives  in  being 
unci  a  minority  thereafter,  the  validity  of  the  appointment  under 
a  special  power  of  appointment  is  determined  by  the  condition 
of  things  as  they  exist  at  the  time  of  the  creation  of  the  power; 
as,  for  example,  at  the  death  of  the  testator  in  whose  will  the 
power  is  created.  The  lives  must  be  then  in  being.^  Thus, 
for  example,  suppose  property  is  devised  for  life  to  A.,  with 
a  special  power  to  appoint  among  his  issue  by  will,  A.'s  ap- 
pointment to  all  his  issue  living  at  Ms  death  in  fee  is  valid.  But 
his  appointment  to  his  children  for  life,  remainder  to  their 
children  or  issue,  would  be  invalid,  as  A.  may  have  children 
born  to  him  after  the  death  of  the  donor  of  the  power,  and 
these  children  may,  after  A.'s  death,  have  children  born  to  them. 
The  appointment  to  issue  is  valid  only  so  far  as  the  issue  come 
into  being  during  A.'s  life,  or  in  some  life  in  being  at  the  death 
of  the  donor.^  Thus,  a  power  to  appoint  among  the  grandchil- 
dren of  a  person  who  is  alive  when  the  donor  dies,  cannot  be 
exercised  in  favor  of  his  grandchildren  whose  parents  were  not 
also  tJien  alive.^  But  an  appointment  under  a  general  power 
will  be  valid  if  no  perpetuity  is  created  by  the  appointment. 
The  distinction  is  based  upon  the  fact  that  a  general  power  of 
appointment  of  the  fee  by  deed  or  will  is  nearly  equivalent  to 
a  legal  estate  in  absolute  ownership.  To  illustrate  this  fully, 
we  will  suppose  that  the  donor  creates  a  special  power  in  A. 
to  appoint  by  will  in  favor  of  his  children  after  a  life  estate  in 
A.  The  children  of  A.  on  their  birth  take  an  interest  under 
the  instrument  creating  the  power  by  way  of  a  future  use. 
The  alienation  of  the  fee  is  suspended  during  the  life  of  A. 
Hence  if  he  shall  by  his  will  appoint  a  life  estate  to  a  child  of 
bis  who  was  not  in  being  at  the  death  of  the  donor  of  the 
power,  the  power  of  alienation  will  by  this  appointment  be 
suspended  during  the  life  of  a  person  not  in  being  at  the  time 
of  creating  the  power.  On  the  other  hand,  where  the  power 
in  A.  was  a  general  power,  he  only  takes  an  interest  under  the 

1  Fargo  V.  Squiers,  154  N.  Y.  2o0.        S.  444:  Albert  v.  Albert,  68  Md.  352, 

2  Bristow  V.  Ward.  2  Ves.  Jr.  336,     12  AtL  R.  11. 

850;  In  re  Brown,  L.  R.  3  Ch.  D.  156;        » Co.  Lit.   271,  b;  2  Wash.   R.   P., 
Hillen  v.  Iselin,  67  Hun,  444,  22  N.  Y.    p.  671;  Sugden  on  Powers,  pp.  471-475. 


§  807.]  TESTAMEXTAEY    USES,  TKUST    ESTATES,  ETC.  1183 

instrument  creating  the  power,  and  no  perpetuity  is  created 
by  it,  for  be  may  at  any  time  by  deed  or  will  alienate  the  fee 
simple  of  the  estate.  But  where  the  general  power  is  to  be 
exercised  by  will,  the  power  of  disposition  is  suspended  during 
A.'s  life,  and  the  rule  applicable  to  special  powers  applies. 

If  the  donor  of  a  power  is  to  appoint  to  a  class,  some  only  of 
whom  are  incompetent  to  take,  and  the  donee  appoints  to  the 
whole  class,  as  where  he  appoints  by  will  among  his  oion  issue, 
which  may  include  the  chiklren  of  persons  who  were  not  in 
being  at  the  death  of  the  donor,  the  appointment  is  void  as  to  the 
whole  class ;  ^  particularly  where  they  are  all  to  take  under  the 
appointment  as  tenants  in  common,  for  then  the  shares  of  those 
who  are  competent  to  take  cannot  be  ascertained  separately 
from  the  shares  of  the  incompetent.-  But  where  he  has  exer- 
cised a  discretion  to  appoint  only  among  those  capable  of  tak- 
ing, though  others  were  in  the  class  who  were  incapable,  his 
execution  is  good,  though  it  was  possible  that  he  miglit  have 
made  an  invalid  appointment.' 

So,  also,  limitations  in  default  of  the  execution  of  a  power, 
if  not  themselves  invalid  because  they  create  a  perpetuity,  are 
not  void  because  the  execution  of  the  power  is  invalid  on  ac- 
count of  remoteness,  if  it  was  clear  that  the  limitation  in  default 
is  to  take  effect  unless  displaced  by  a  valid  execution  of  the 
power.^  But  a  devise  in  default  of  an  appointment  which  is 
to  be  made  by  A.  to  her  children,  after  a  life  estate  in  her  and 
B.,  her  husband,  to  the  sons  and  daughters  of  the  testator  living 
at  the  death  of  the  survivor  of  A.  and  B.,  and  to  the  issue  of 
those  dead,  is  void  for  remoteness  where  A.  marries  a  man  liv- 
ing  at  the  fJeath  of  the  testator,  and  dies  Avithout  issue.'  Whether 
a  power  conferred  upon  a  person  who  is  7iot  in  lelng  at  the  death 
of  the  donor  is  invalid  de])ends  upon  the  character  of  the  power. 
An,  example  of  this  would  be  a  devise  of  life  estates  to  the 
children  of  a  por.son  who  is  alive  at  the  death  of  the  testator, 

iRontlffl^e  V.  Dorril,  2  Ves.  .Jr.  Xu,  to  A.  in  trust  for  tlio  life  of  B.,  and 

308;  Thoriias  v.  Tlioinas,  14  Situ.  U;}4;  on  her  d«.'Htli  to  convoy  to  her  ap- 

Martin  v.  Pine,  2'.)  N.  Y.  S.  JV.)").  pointoos,  ami  in  dffault  to  lior  cliil- 

2  Attr-nhorouKh  v.  Attc'nlxjnjuslJ.  1  'Ircn. 

K  &  .1.  •,'!•(}.  *  In  re  Ahixjtt.  3  I{oiK)r(s,  72;  [1893] 

»  Appli-foii's  Appeal.  130  P.-u  St.  3.'. J,  1  Cli.  .*)1. 

20  AtL  li.  521,  where  the  devLso  waa  &  In  n-  Frost,  L.  R  13  Ch,  D.  24a 


1184  LAW    OF   AVILLS.  [§  807. 

with  a  power  of  appointraent  of  the  fee  in  each  child.  If  they 
have  a  general  power  of  disposal,  either  by  deed  or  Avill,  the 
limitation  is  valid  if  the  power  is  to  vest  within  the  legal  period, 
thouirh  some  of  the  life  tenants  are  born  after  the  date  of  the 
creation  of  the  power.  Where  the  general  power  can  be  ex- 
ercised only  by  will,  it  is  invalid,  for  this  would  result  in  sus- 
pending the  vesting  during  a  life  not  in  being  when  the  power 
was  created.^ 

1  WoUaston  v.  King,  L.  R.  8  Eq.  165;  Morgan  v.  Gronow,  L.  R.  16  Eq.  1. 


CHAPTER  XLI. 

THE  RULES  REGULATING  CHARITABLE  GIFTS  BY  WILL. 


§  808.  Charity  defined. 

809.  The  law  of  charitable  gifts  in 

England  prior  to  the  pas- 
sage of  the  statute  of  Eliza- 
beth. 

810.  The   force   and  operation  of 

the  statute  of  Elizabeth  in 
.the  states  of  the  American 
Union. 

811.  The  charity  must  be  a  public 

one. 
813.  The  validity  of  bequests  for 

religious  purposes. 
813.  The  validity  of  bequests  for 

masses    in  England   and 

America, 
814  Gifts  for  educational  purposes, 

to    establish    schools,    pay 

teachers,  etc. 

815.  Gifts  for  scientific  purposes. 

816.  Testamentary  provisions   for 

the  poor  —  Validity  of. 

817.  Definition   and  classification 

of  the  poor. 

818.  Gifts  to  orphan  asylums  and 

for  the  benefit  of  orphans 
and  widows. 

819.  The  validity  of  testamentary 

gifts  to  the  national  or  state 
government. 

820.  Cliaritable  gifts  for  the  pur- 

pose of  effecting  a  change  in 
existing  laws. 

821.  Gifts  for  general  benevolence 

or  for  benevolent  purposes. 

822.  Miscellaneous  cases  of  char- 

itable gifts. 

823.  Testamentary  provisions    for 

the   eroftion    and    care  of 
monum«;nts. 
82'L  Tlu^  doctrim!  of  ry  prrs  as  ayv 
plifd  to  ciiaritabie  gifts  by 
will. 

75 


825.  The  status  of  the  cy  pres  doc- 

trine in  the  United  States. 

826.  Uncertainty   and    indefinite- 

ness  as  regards  charitable 
gifts. 

827.  The  indefiniteness  of  the  bene- 

ficiaries of  the  charity. 

828.  The  jurisdiction  of  the  court 

of  equity  to  appoint  trustees 
of  a  charitable  trust. 

829.  Charitable  gifts  to  institutions 

which  are  to  be  incorpo- 
rated in  the  future. 

830.  The  validity  of  charitable 

gifts  to  unincorporated  and 
voluntary  societies. 

831.  Misnomer  in  the  case  of  gifts 

to  charitable  institutions. 

832.  Charitable  gifts  to  executors 

or  trustees  with  delegation 
of  the  power  to  select  the  in- 
stitutions or  objects  which 
are  to  be  benefited. 

833.  The  validity  and  performance 

of  conditions  which  are  at- 
tached to  charitable  gifts. 

834.  The  elfect  of  the  consolida- 

tion, division  or  dissolution 
of  a  cori)oration  which  is 
the  donee  of  a  charitable 
gift. 

835.  Definition  of  the  words  point- 

ing out  the  area  within 
whicli  the  charitable  funds 
are  to  be  distril)utod. 

836.  Procurement  of  charitable  be- 

quest by  unfair  moans,  fraud 
or  undiu)  infiufiict!. 

837.  The  Knglisli  statutes  of  supcr- 

hlitious  usi^s. 

838.  Tiie  validity  of  bcriucsts   for 

the  KiipiKirt  of  the  lioinan 
Catholic  ciiurch  in  Knglaud. 


11 8G 


LAW    OF    WILLS. 


[§§  808,  809. 


§  839.  The  American  view  of  the 
doctrine  of  superstitious 
uses. 

840.  The  English  statutes  of  mort- 

main. 

841.  Statutory  limitations  upon  the 

value  of  property  which  can 


be  owned  by  charitable  cor- 
])orations. 
§  842.  Statutory  limitations  upon  the 
time  of  charitable  gifts  by 
will. 
843.  The  law  of  testamentary  char- 
itable gifts  in  New  York. 


§808.  Charity  (lefined. —  A  charity,  in  a  legal  sense,  is  a 
"gift  to  be  applied  consistently  with  existing  laws,  for  the 
benefit  of  any  indefinite  number  of  persons,  either  by  bringing 
their  hearts  under  the  influence  of  education  or  religion,  by  re- 
lieving their  bodies  from  disease,  suffering  or  constraint,  by 
assisting  them  to  establish  themselves  in  life,  or  by  erecting 
or  maintaining  public  buildings  or  worlds,  or  otherwise  lessen- 
ing the  burdens  of  government."^  In  modern  times,  where 
neither  the  rules  of  law  nor  considerations  of  public  policy  for- 
bid, the  word  "  charity,"  in  its  legal  sense,  is  usually  applied  to 
almost  any  movement  which  tends  to  promote  the  comfort  and 
moral,  physical  or  spiritual  well-being  of  man  in  society.^  And 
usually  the  word  "  eleemosynary  "  used  in  a  will  is  sjmonymous 
with  charitable. 

The  law  of  charitable  gifts,  considered  in  its  connection  with 
wills,  is  of  great  and  growing  importance.  The  present  philo- 
sophic tendency  to  the  spread  of  altruistic  sentiments  among  all 
classes  of  society,  and  the  growing  interest  which  is  manifested 
by  the  rich  in  the  various  movements  for  social  betterment 
Avhich  are  under  way,  have  led  and  will  lead  to  the  making  of 
numerous  gifts  by  will  in  favor  of  those  purposes  for  social  re- 
form in  which  the  testator  may  have  a  personal  interest.  The 
principles  of  the  law  of  charitable  bequests  we  will  now  con- 
sider. 

§  809.  The  law  of  charitable  gifts  in  England  prior  4o  the 
passage  of  the  statute  of  Elizabeth. —  "  The  history  of  the  law 
of  charities,  prior  to  the  statute  of  43  Eliz.,  ch.  4,"  says  Judge 
Story,'  "  is  extremely  obscure."     We  know  for  a  certainty  from 


1  Jackson  v.  Phillips,  14  Allen  (Mass.), 
555,  556.  For  other  definitions  see 
also  Erskiue  v.  Whitehead.  84  Ind. 
357,  3G6:  In  re  Hewitfs  Estate,  29 
Pac.  R  775,  94  Cal.  376;  Taylor  v. 
Keep,  2  Bradf.  (IlL)  368;  Heaser  v. 
Harris.  42  111.  425;  Johnson  v.  John- 
son, 98  IlL  364;  Simpson  v.  "Welcome, 


72  Me.  496,  501;  Price  v.  Maxwell,  28 
Pa.  St.  23,  35;  Pell  v.  Mercer,  14  R  L 
412,  442;  Webster  v.  Wiggin,  31  AtL 
R.  828. 

•i  Perry  on  Trusts,  §  637. 

3  See  Story's  Equity  Jurisprudence, 
SS  1142-1154. 


§  809.]  KULKS    KEGULATIXG    CUARITABLE    GIFTS.  IIST 

a  perusal  of  the  pages  of  English  histoiy  that  the  practice  of 
making  charitable  gifts  for  the  benefit  of  the  poor,  for  the  pur- 
pose of  endowing  churches  and  monasteries,  and  to  sustain, 
religious  worship,  has  prevailed  to  a  large  extent  from  the 
earliest  times.  Assuming  that  human  nature  is  identical  in  all 
periods,  and  that  all  men  are  largely  prompted  by  motives  of 
self-interest  to  seek  to  acquire  what  they  may  of  worldly  pos- 
sessions, it  is  conceivable  that  the  disappointed  heirs  of  those 
who  had  granted  their  lands  or  bequeathed  their  patrimony  to 
the  religious  orders  for  the  purpose  of  almsgiving,  education 
or  religious  worship  would  have  frequently  made  strenuous 
efforts  in  courts  of  justice  to  have  such  donations  invalidated. 
Strange  to  say,  however,  very  few  cases  of  this  sort  are  to  be 
found  in  the  earlier  reports,  either  at  law  or  in  equity. 

The  majority  of  those  that  are  reported  were  determined  in 
the  courts  of  common  law,  the  issue  in  most  instances  being  the 
validity  of  the  gift  because  of  the  incapacity  of  the  donee  under 
some  one  of  the  statutes  of  mortmain  or  of  superstitious  uses.* 
Thus,  in  a  case-  which  was  decided  by  the  law  courts  in  the 
year  1592,  the  question  arose  as  to  the  performance  of  a  con- 
dition that  lands  should  be  held  in  trust  for  the  support  of  free 
schools  and  to  give  the  balance  of  the  income  to  the  poor.  In 
this  case  the  heir,  having  entered  on  the  land  for  a  breach  of 
tills  condition,  conveyed  to  the  crown,  and  the  court  held,  ^V6'^, 
that  the  purpose  of  the  gift  was  a  valid  one,  not  being  within 
the  statute  forbidding  superstitious  uses,  and  second^  that  the 
crown  took  the  land  in  trust  for  the  purposes  originally  men- 
tioned. It  is  worthy  of  remark,  as  pointed  out  by  J  udgo  Story, 
that  the  counsel  who  argued  this  case  on  behalf  of  the  crown, 
though  they  cited  nmiicrous  precedents,  referred  exclusively  to 
tlios(3  wliich  were  taken  from  the  courts  of  law. 

I'uilding  upon  this  circuinstance  and  the  unironii  ti-adition 
of  th(;  tiuK'S  nirntioncKl  by  J.(jrd  Chance 'Uoi-  J.ougliboi'oiiiili,  that, 
])ri(jr  to  the  times  (jf  ].<jrd  Klle'smci-c,''  no  hill  had  been  lilcd  in 
chancery  to  ostabiisli  a  charily,  hut  that  the  p.irtirs  who  con- 
sidered tlieujselvcs  aggriijvcd  sought  relief  at  law,  many  au- 
thoi-ities  have  considered  that  th(!  jurisdicticju  of  the  Knglisli 
chancellor  to  enforce  charital)le  gifts  in  cases  where  the  pui- 

'  I'ud,  ^  sj'j.  •-'  I'ortor'a  Ciisc,  1  Co.  L'GO.  ^A.  D.  IGU.'J. 


1188  LAW  OF  Avii.r.s.  [§  809. 

poses  or  objects  of  the  gift  are  inilofinito,  or  where  no  trustee 
is  named,  does  not  antedate  the  statute  of  Elizabeth.^  Of  course 
it  need  hardly  be  said  that  where  a  gift  or  a  grant  was  to  char- 
ities (jcnerally,  no  imstee  hclng  iiamed^  or  in  case  of  a  devise  to 
a  voluniary  society,  or  an  unincorporated  association,  or  wliere 
the  beneficiaries  were  both  in<l<'finite  and  unascertained,  the  gift 
woukl,  until  the  statute  of  Elizabeth,  have  been  held  void  in 
a  court  of  law,  because  there  was  not  a  grantee  competent  to 
take,  and  if  the  court  of  chancery  had  no  jurisdiction  to  estab- 
lish the  gift  it  would  have  failed.  That  this  court  always  had 
adequate  jurisdiction  in  such  cases  is  maintained  by  very  many 
of  the  later  decisions,  which  are  directly  opposed  to  the  dictum 
of  Lord  Ellesmere  mentioned  by  Lord  Loughborough.  Thus 
in  an  early  case  in  chancery  the  court  expressly  says  that  the 
crown,  acting  through  the  lord  chancellor,  undoubtedly  had  an 
inherent  right  to  support  and  regulate  charities  aside  from  and 
antecedent  to  the  statute  of  Elizabeth,  and  that  it  had  been  a  mat- 
ter of  every-day  practice  in  chancery  that  informations  should  be 
filed  by  the  attorney-general  for  that  purpose.^  That  the  court 
of  chancery  had  no  jurisdiction  to  establish  a  charitable  gift 
"where  the  gift  would  not  have  been  valid  at  common  laio,  aside 
from  and  prior  to  the  passage  of  the  statute  of  Elizabeth,  is  ad- 
mitted to  be  a  mere  conjecture  based  upon  the  silence  of  the 
reports  and  the  tradition  of  the  chancery  bar.  But  the  fact 
that  very  many  charitable  institutions,  such  as  colleges,  mon- 
asteries and  churches,  were  in  existence  prior  to  the  passage  of 
that  enactment,  which  could  never  have  been  valid  under  com- 
mon-law rules,  either  because  no  person  had  been  named  to 
take  the  legal  title,  or  because  of  a  misnomer  in  the  grantee, 
or  because  of  the  indefiniteness  of  the  beneficiaries,  w^arrants 
us  in  conjecturing  that  such  charities  must  have  been  validated 

^  Lord  Lousliborough,  in  deciding  tion  to  establish  a  charity),  but  they 

the  case  of  Attorney-General  v.  Bow-  made  out  their  case  as  well  as  they 

yer,  3  Ves.  714,  on  page  720  says:  "It  could  by  law." 

does  not  appear  that  this  court  had  2  gee  the  remarks  of  the  chancellor 

cognizance  upon  informations  for  the  in  Ej^re  v.  Shaftsbury,  2  P.  Wms.  103, 

establishment  of  ciiarities.    Prior  to  on  page  118.    And  see  also  the  re- 

the  time  of  Lord  Ellesmere,  as  far  as  marks  of  Lord  Hardwicke  in  case 

the  tradition  of  the  times  immedi-  of   the    Bailiffs,   etc.   of  Burford  v. 

ately  following  goes,  there  were  no  Lanthal,  1  Atk.  550,  decided  in  chan- 

such  informations  as  that  upon  which  eery. 
I  am  now  sitting  (that  is,  an  informa- 


809.] 


EULES    KEGULATIXG    CHARITABLE    GIFTS. 


1189 


in  some  competent  tribunal,  and  it  is  also  most  natural  to  as- 
sume that  this  tribunal  was  the  court  of  the  king,  presided 
over  by  his  chancellor.^  If  the  gift  was  to  a  charitable  corpo- 
ration existing  under  and  bj  virtue  of  a  royal  charter,  the 
courts  of  common  law  had  full  jurisdiction  to  determine  the 
validity  of  the  gift  according  to  the  judicial  construction  of 
the  charter.  If  the  corporation  in  whose  favor  the  gift  had 
been  made  had  an  adequate  remedy  at  law,  it  was  under  no 
necessity  of  seeldn  j-  the  aid  of  chancery.  But  all  charitable 
gifts  were  not  given  under  such  conditions,  and  we  may,  with- 
out doing  violence  to  reason,  assume  that  the  applications  of 
those  who  had  been  favored  by  the  bounty  of  the  rich  and 
prosperous,  which  they  could  not  enjoy  under  the  rules  of  the 
law,  to  the  chancellor,  in  order  that  he  might  enable  thera  to 
receive  the  benefit,  were  numerous.  And  we  know  too  that, 
though  equity  followed  the  law,  it  was  still  jealous  of  it,  and 
in  later  times  created  estates  which  were  absolutely  and  totally 
opposed  to  all  common-law  rules;  as,  for  example,  the  separate 
estates  of  married  women  and  trust  estates  generally.-    , 


1  In  AVilliams  v.  Williams.  8  N.  Y. 
541,  the  court,  by  Denio,  J.,  says: 
"From  a  careful  examination  of 
these  authorities  I  have  come  to 
the  conclusion  that  the  law  of  char- 
ities was,  at  an  indefinite  but  early 
period  in  English  judicial  history, 
engrafted  upon  the  common  law, 
that  its  general  maxims  were  derivetl 
from  the  civil  law,  as  modified  in 
the  latter  fjeriods  of  the  empire  by 
the  ecclesiastical  element  intr<jduced 
with  Christianity;  and  tliat  tlie  stat- 
ute of  cliaritable  uses  was  not  in^ 
troduct<jry  of  any  new  priiici|il<'s, 
but  was  only  a  new  and  less  dila- 
tory and  exjKinsive  metlio<l  of  estal>- 
lishing  charitable  donations,  which 
wer«i  undcrstfKjd  to  \*(i  valid  by  the 
laws  anteredcritly  in  forc*^  The  pro- 
visions of  the  statute  its<'lf  airord 
irnrsistiblo  evitleiifo  U)  my  niinil 
that  Kiif.-h  was  its  design  and  efrect." 

-"The  elr-iuenls  of  the  dix-trinn  of 
the  Flnnlisli  fbanfery  in  ri'lation  to 
churiUible  u.s»,'s  an;  l<j  be   found  in 


the  civil  law.  and  it  is  questionable 
whether  the  English  system  of  char- 
ities is  to  be  referred  exclusively  to 
the  statute  of  Elizabeth.  The  stat- 
ute lias  been  resorted  to  as  a  guide 
because  it  furnished  the  largest 
enumeration  of  just  and  meritorious 
charitable  uses;  and  it  may  i^erhapa 
be  ratiier  considered  as  a  declaratory 
law,  or  specification  of  previously 
recognized  charities,  than  as  creat- 
ing, as  some  cases  have  intimated, 
the  objects  of  chancery  jurisdietion 
over  charities.  If  the  whole  juris- 
diction of  equity  over  cdiaritable  uses 
and  devises  was  grounded  on  tlie 
statute  of  Elizjibeth,  then  we  are 
driven  to  the  conclusion  that,  as  tiie 
statute  lias  never  been  re-enacted, 
fiur  courts  of  eipiity  in  tliis  country 
art'  cut  off  from  a  lar^c  field  of  juris- 
diction, over  some  of  the  most  inter- 
esting and  meritorious  trusts  tiiat 
can  |MiHsibly  l»e  created  und  confided 
to  the  inte^^'rity  of  man.  It  would 
:i|i|M'ai'  fniiM  the  preamble  to  t  lie  stat- 


1100  LAW    OF    AY  ILLS.  [§  809. 

Tliat  the  clerical  chancellors  were  prone  to  assert  tlu'ir  in- 
dependence of  the  courts  of  coniinoii  law,  and  jx-rhaps  even  to 
usurp  some  at  least  of  the  powers  and  jurisdiction  of  these 
tribunals,  is  admitted.  This  was  exempliiied  in  the  case  of  trust 
estates.  But  in  the  case  of  charities  no  usurpation  was  required, 
for  they,  in  most  cases,  had  sufficient  legitimate  jurisdiction  by 
reason  of  the  cognizance  which  they  exercised  in  the  case  of 
fraud,  accident  and  mistake,  and  in  connection  with  uses  both 
before  and  after  the  statute  of  uses.'  The  principles  and  doc- 
trines existing  under  these  various  heads  they  could  ap})ly  with 
freedom  with  the  view  of  avoiding  the  injustice  which  would 
arise  from  a  too  rigid  application  of  the  rules  of  the  common 
law  to  all  matters  not  of  a  cliarltaMe  nature.  If  the  feoffee  to 
the  use  of  a  private  person  refused  to  execute  his  trust  in  ac- 
cordance with  the  intention  of  the  creator  of  the  use,  or  if  he 
misappropriated  the  funds,  or  if  a  deed  or  conveyance  improperly 
executed,  or  executed  by  mistake,  stood  in  need  of  reformation, 
and  the  suitor  was  in  danger  of  suffering  injustice  because  he  had 
no  adequate  remedy  at  law,  equity  would  not  refuse  its  aid  in  a 
case  where  the  property  in  question  was  not  di.'ijyosed  of  for 
charities.  To  have  refused  the  like  aid  in  the  case  of  charita- 
ble gifts  would  have  been  to  place  such  gifts  under  the  ban  of 
equity,  while  they  were  undoubtedly  favored  at  law  and  by  pul)- 
lic  policy.  This  condition  of  affairs  is  not  conceivable,  partic- 
ularly when  we  consider  the  very  liberal  and  untechnical  rules 
of  ancient  equity,  conceived  in  the  spirit  of  doing  justice  and 
of  carrying  out  the  intention  of  those  who  disposed  of  their 
jiroperty  in  trust  for  the  benefit  of  others.'  The  evident  and 
plain  purpose  of  the  statute  of  Elizabeth,  as  will  readily  be 
seen  upon  its  perusal,^  was  not  to  create  charities  but  to  define 
them  more  accurately,  and  to  provide  a  system  of  procedure 
through  which,  by  means  of  commissions  issued  out  of  chan- 
cery, and  directed  to  the  bishops  of  the  several  dioceses,  it 
might  be  determined,  with  the  aid  of  a  jury,  whether  the  uses 

ute  of  Elizabeth  that  it  did  not  in-  -  See  the  opinion  of  the  court  in 

t-end  to  give  any  new   validity  to  Magill  v.  Brown,  Brightley  (Pa.),  346, 

charitable  donations,  but  rather  to  delivered  by  Justice  Baldwin,  partic- 

provide  a  new  and  more  effective  ularly  what  is  said  on  pp.  389,  391. 

remedy   for  the   breaches   of  these  ^  in   Viner's  Ab.,    tit.    Charitable 

trusts."    2  Kent.  Com.  287.  Uses,  the  statute  is  given  at  lengtli. 
^Ante,  §  771  et  seq. 


§   SIO.]  RULES    KEGULATING    CHARITABLE    GIFTS,  1191 

■were  charitable,  and  the  property  thus  given  might  be  regulated 
and  applied  to  carry  out  the  intention  of  the  donor.  The  ulti- 
mate decision,  however,  la}'  with  the  chancellor  in  equity,  and, 
though  the  preliminary  proceedings  Avere  certainly  exceptional, 
and  savored  somewhat  of  a  trial  at  common  law,  still  the  action 
of  the  chancellor  was  conclusive  and  not  subject  to  review  by  a 
court  of  law.^ 

The  proceedings  by  a  commission  out  of  chancery  soon  proved 
to  be  too  cumbrous  and  were  subject  to  abuse  and  delay.  They 
gradually  fell  into  desuetude,  and  the  former  method  of  pro- 
ceeding by  bill  in  chancery  upon  the  application  of  the  attor- 
nej'-general  was  largel}-  restored.  But  the  statute  was  still 
resorted  to  for  the  purpose  of  ascertaining  whether  or  not  a 
donation  was  charitable  under  the  definitions  and  classifications 
which  are  contained  in  its  preamble,  and  if  the  purpose  of  the 
testator  did  not  range  itself  under  or  assimilate  itself  to  some 
one  or  more  of  the  purposes  which  are  there  enumerated  as 
charitable  in  the  eyes  of  the  law,  the  gift  was  void.'- 

^*  SIO.  The  force  and  operation  of  the  statute  of  Elizabeth 
in  the  states  of  the  American  Union. —  The  importance  of  de- 
termining the  question  whether  the  jurisdiction  of  chancery 
courts  over  charitaljle  gifts  is  inherent  in  them  prior  to  the 
statute  of  Elizabeth  lies  in  the  fact  that  in  some  of  the  states  of 
the  United  States  this  statute  has  been  either  expressly  repealed, 
or  the  courts  have  determined  that  it  was  local  and  peculiar  to 
English  institutions.  AVhere  this  is  the  case  the  statute  is  not 
to  be  regarded  as  a  part  of  the  body  of  English  statute  law, 
which,  upon  the  separation  of  the  colonies  from  the  mother 
country  at  the  time  of  the  Itevolution,  became  a  part  of  Ameri- 

•  The  autliority  of  tlio  clianrellor  ties,  rpi)air  of  brid^i's.  jxnls,  liavons, 

was     statutory    ami     not   exercised  causeways,  cliurches,  sea-l>aiiks  and 

under  his  ordinary  jurisdiction,  nor  liif^hways,  eihication  and  prefennont 

i'ould  an  appejil  1m-' taken  to  the  House  of   or|»hans,  relief,  stock  or  ntainto- 

of  Lords.     Saul  v.  Wilson.  2  Vernon,  nance  for  liouses  of  correction,  niar- 

llM;  \Vinds<jr  V.  Inhaljitants  of  Farn-  ria^;e   of   jRMjr   maids,   supportation, 

liuni,  Cro.  Car.  40.  lielp,  and  aid  of  younjj  tradesmen, 

-The  preamble  of   the  htJitute   4'i  Jiandicraftsmenantl  |M'rs<jnsd(H'ayod» 

Kliz.,  c.   4,  is  as  follows:    "Keljef  of  nliff  or  redi-ini»lion  of  prisoners  or 

a^'^l,  tmf>otent  and  |((M>r  |M>o]ile,  main-  captives,  aid  or  ease  of  any  [xMir  in- 

tenance  of  sick  and  maimed  soldiers  habitant    concerning;    payments    of 

and    mariners,    s<-h<K)ls   «)f   learning,  lifteens.- setting  out  of  .sohlier.s,  or  to 

frcse  scho«jls  and  scholars  in  universi-  other  taxeH." 


1102  LAW    OF    WILLS.  §  SIO. 

can  jurisprudence.  In  some  of  the  states  a  general  act  has 
been  passed  by  the  legislature,  or  an  express  provision  has  been 
inserted  in  tlie  state  constitution,  to  the  efTect  that  all  English 
statutes  generally,  or,  in  some  cases  all  English  statutes,  with 
a  few  exceptions,  shall  be  regarded  as  repealed,  or  they  shall 
have  no  force.^  In  those  states  a  court  of  equity,  independently 
of  a  local  enabling  statute,  has  no  jurisdiction  to  sustain  chari- 
table trusts  except  by  virtue  of  the  inherent  power  of  such  a 
court  as  it  may  have  existed  in  England,  aside  from  and  prior 
to  the  passage  of  the  statute,  which  power  has  been  transferred 
to  and  incorporated  into  the  system  of  American  equity  juris- 
prudence as  it  exists  in  the  United  States.  In  an  early  case 
decided  in  the  supreme  court  of  the  United  States,  it  was  held 
that,  before  the  passage  of  the  statute,  the  court  of  equity  had 
never  possessed,  or  at  least  had  never  exercised,  any  jurisdiction 
to  carry  into  effect  any  charitable  trust  which  would  have  been 
void  under  common-hiw  rules  because  of  the  indefmiteness  of 
the  purpose  of  the  donor  or  of  the  character  of  the  benefici- 
aries.- This  decision,  although  subsequently  often  dissented 
from  by  the  courts  of  the  several  states,  and  also  overruled  by 
the  decisions  of  the  court  in  which  it  was  rendered,  was  fol- 
lowed in  a  few  of  the  earlier  American  decisions.'  AVhcre  this 
view  prevailed,  and  where,  at  the  same  time,  the  force  of  the 
statute  was  not  admitted,  it  was  held  that  no  charitable  dona- 
tion had  any  force  or  validity  unless  the  trust  was  definite  both 
as  to  its  purpose  and  as  regards  the  beneficiaries,  and  unless  a 
trustee  was  in  fact  appointed.  The  first  case  in  which  these 
views  were  repudiated  was  determined  in  the  state  of  Pennsyl- 
vania in  the  year  1835.* 

1 A  statute  which  declares  that  no  ^Dashiell  v.  Attorney-General,  5 
statute  of  Great  Britain  shall  have  H.  &  J.  (Md.,  1S22),  392;  Gallego  v. 
any  force  in  the  courts  of  a  state  Attorney-General,  3  Leigh  (Va.,  1832), 
does  not  apply  to  the  statute  of  Eliz-  450.  And  see  also  the  case  of  Griffin 
abeth,  which  was  enacted  over  one  v.  Graham,  1  Hawks  (N.  C.,  1820),  190. 
hundred  years  prior  to  the  union  of  *McGill  v.  Brown,  Brightley  (Pa.), 
England  and  Scotland,  which  to-  346.  Indeed  charitable  gifts  have 
gether  constitute  Great  Britain,  and  always  been  regarded  with  much 
the  statute  of  Elizabeth  is  not  re-  favor  by  the  courts  of  this  common- 
pealed  thereby.  Webster  v.  Morris,  wealth.  They  have  uniformly  helii 
66  Wis.  366,  390.  that  the  statute  of  Elizabeth  was  in- 

2  Baptist  Association  v.  Hart,  4  tended  not  to  create,  but  only  to  de- 
Wheat.  (U.  S.,  1819),  1,  30,  39.  fine,  charitable  trusts,   and  that  it 


SIO.] 


KULES    KEGULATIXG    CHAKITABLE    GIFTS. 


119c 


The  decision  in  the  Pennsylvania  case  "was  followed  by  an- 
other in  the  state  of  Yermont  in  the  year  1S35,  in  which,  after 
prolonged  argument  and  an  exhaustive  examination  of  all  the 
authorities  which  had  been  determined  down  to  that  date,  the 
court  decided  that,  aside  from  the  statute,  a  court  of  equity 
possessed  full  power  to  enforce  a  charitable  devise  irrespective 
of  its  invalidity  under  the  rules  of  the  common  law.^  At  length 
in  the  supreme  court  of  the  United  States  the  doctrine  received 
a  most  thorough  examination,  and  the  court  decided  upon  a 
fuller  investigation,  in  more  recent  times,  that  the  conclusion 
was  irresistible  that,  long  prior  to  the  passage  of  the  statute  of 
Elizabeth,  the  English  chancellor  had  exercised  the  fullest  juris- 
diction, not  only  to  sustain  and  validate  indefinite  and  vague 
charitable  devises  where  there  were  trustees  appointed  to  take 
the  legal  title,  but  also  to  sustain  such  gifts  where  there  were  no 
trustees  appointed,  or  where  those  who  were  appointed  had  re- 
fused or  had  been  unable  to  act.^  Assuming,  therefore,  as  well 
settled  that  the  statute  was  only  remedial  and  confirmatory  of 


conferred  very  little  power  upon  the 
English  court  of  cliancery  that  it 
did  not  possess  and  exercise  prior  to 
the  statute.  And  though  the  Penn- 
sylvania cases  do  not  admit  the  stat- 
ute to  be  in  force  in  that  state,  they 
affirm  the  powers  of  equity  to  sus- 
tain a  charitable  trust  as  inlierent  in 
the  court,  being  a  part  of  its  general 
power  over  trusts,  or  of  its  jurisdic- 
tion which  it  exercised  by  virtue  of 
its  well  known  powers  in  cases  of 
fraud,  accident  and  mistake,  wliere 
the  party  injured  had  no  adequate 
remedy  at  law.  They  have,  therefore, 
while  expressly  ruling  tliat  the  stat- 
ute itself  is  not  in  force,  adopted  all 
the  principles  u|)on  wliich  it  is  based, 
and  which  it  was  enacted  to  enforce 
and  regulate,  and  wliich  were  aj>- 
plied  by  the  Knglisli  courts  of  equity 
as  a  fKirt  of  the  general  rules  of  ecjuity. 
Methodist  Chur(;h  v,  Kemiiigton,  1 
Watts  (Pa.),  21H;  Zimmerman  v.  An- 
ders, 6  "Watts  &  S.  (Pa.,  1HJ;{),  .^IH; 
Wright  v,  Lynn,  »  Pa.  St.  VM;  Wit- 
man  v.  Lex.lTS.  &  li.  (Pa.,  1«27),W,  \)2; 


Miller  v.  Porter,  53  Pa.  St.  292:  Beth- 
lehem V.  Perseverence,  81  Pa.  St.  445; 
Fountain  v.  Rii venal,  17  How.  (U.  S.) 
369;  McGirr  v.  Aaron,  1  Pa.  St.  49; 
Mayor  of  Philadelphia  v.  James,  S 
Rawle  (Pa..  1831),  170;  Martin  v.  Mc- 
Cord,  5  Watts  (Pa.),  494. 

1  Burr's  Executors  v.  Smith,  7  Vt. 
241. 

2Vidal  V.  Girard's  Executors,  2 
How.  (U.  S.,  1844).  127.  In  tliis  case 
Justice  Story  says:  "Whatever 
doubts  might  properly  be  entertained 
upon  the  subject  when  the  case  of 
the  Trustees  of  the  Philadelphia  Bap- 
tist Association  (4  Wlieat.  1)  was  be- 
fore the  court  (1819),  those  doubts  are 
entirely  removed  by  the  later  and 
more  satisfactory  .sources  of  informa- 
tion to  which  we  have  alliuled.  The 
former  idea  was  exploiled  ami  has 
since  nearly  disjippeared  from  the 
jurisprudence  of  the  rountry.  Upon 
reading  the  statute  carel'iilly  one  tuin- 
notbut  feel  surprised  that  the  doubt* 
thus  iiulicated  over  existed," 


11!)  J: 


LAW    OF    AVir.I.S. 


[§  810. 


the  jurisdiction  of  equity  which  existed  when  it  was  passed, 
;ind  which  had  hcen  possessed  and  exercised  for  a  considerable 
period,  the  question  as  to  the  existence  of  the  statute  in  the 
United  States  is  not  important.^ 

In  very  many  of  the  states  the  decisions  go  much  further. 
Xot  only  are  the  principles  of  English  equity,  under  which 
charities  were  enforced  and  regulated  as  trusts  prior  to  the 
statute,  recognized,  but  the  statute  of  Elizabeth  itself  is,  by  the 
decisions,  expressly  declared  to  be  in  force.  This  is  the  rule 
in  Illinois,  which  state  has,  by  statute,  re-enacted  as  a  part  of 
its  common  law  all  English  statutes  passed  prior  to  the  fourth 
year  of  the  reign  of  James  I.  ;^  and  also  in  Indiana,^  Kansas, 
Maine,^  Massachusetts,^  Missouri  ^  and  Wisconsin.'^ 


1  Williams  v.  Pearson,  38  Ala.  299; 
Green  v.  Dennis,  6  Conn.  292;  New- 
som  V.  Stark  (1872),  46  Ga.  88;  Heuser 
V.  Allen.  42  III,  425;  McCord  v.  Ochil- 
tree, 8  Blackf.  (Ind.,  184G),  15;  Cromie 
V.  Orphans'  Home,  3  Bush  (Ky.),  371; 
]\Ioore  V.  Moore,  4  Dana  (Ky.),  60; 
Tingling  v.  Miller,  77  Md.  104, 107,  26 
Atl.  R.  491;  Dashiell  V.  Attornej^-Gen- 
eral,  5  Harr.  &  J.  (Md.)  392;  Earle  v. 
Wood,  8  Gush.  (Mass.)  430;  Going  v. 
Emery,  16  Pick.  (Mass.)  107;  Norris  v. 
Thompson,  19  N.  J.  Eq.  307;  De  Camp 
V.  Dobbins,  29  N.  J.  Eq.  30;  Yates  v. 
Yates,  9  Barb.  (N.  Y.)  395;  McCartee 
V.  Orphan  Asylum,  9  Cow.  (N.  Y.) 
437;  Ayres  v.  M.  E.  Church,  3  Sandf. 
(N.  Y.)  363;  Levy  v.  Levy,  33  N.  Y.  97; 
Williams  v.  Williams,  8  N.  Y.  525,  541 ; 
Bascom  v.  Albertson,  34  N.  Y.  584, 
618;  Witman  v.  Lex,  17  S.  &  R  (Pa.) 
88;  Potter  v.  Thornton,  7  R.  L  263; 
Green  v.  Allen,  8  Humph.  (Tenn.)  170; 
Dickson  v.  Montgomeiy,  1  Swan 
(Tenn.),  248;  Franklin  v.  Armfiekl,  2 
Sneed  (Tenn.),  305;  Bell  v.  Alexander, 
22  Tex.  2(52;  Hopkins  v.  Usher,  20 
Tex.  89;  Burrs  Ex'rs  v.  Smith,  7  Vt. 
241 ;  Gallegos'  Ex'rs  v.  Attorney-Gen- 
eral, 3  Leigh  (Va.),  450;  Brook  v. 
Shacklett.  13  Gratt.  (Va.)  301;  Ould 
V.  Hospital  (1877),  5  Otto  (U.  S.),  303; 
Perrin  v.  Carey,  24  How.  (U.  S.)  465; 
Baptist  Ass'n  v.  Hart,  4  Wheat.  (U.  S.) 


1,  30;  Vidal  v.  Girard's  Ex'rs,  2  How. 
(U.  S.)  127. 

2Crerar  v.  Williams,  141  III,  625, 
34  N.  E.  R.  467;  Seminary  v.  Mor- 
gan, 171  III  441,  448;  Plumleigh  v. 
Cook,  13  111.  669;  Ingraham  v.  Ingra- 
ham,  169  lU,  432,  451;  Starkweather 
V.  American  Bible  Society,  72  111.  50. 

3  McCord  V.  Ochiltree,  8  Blackf. 
(Ind.)  15,  in  which  the  court  says: 
"The  statute  in  question  we  con- 
ceive to  be  in  aid  of  the  common 
law,  for,  though  it  gave  no  new  ju- 
risdiction to  the  court  of  chancery, 
it  enumerated  and  specified  objects 
of  its  cognizance  which,  prior  to  its 
passage,  seem  to  have  been  involved 
somewhat  in  doubt  and  obscurity." 

^Tappan  v.  Deblois,  45  Me.  122; 
Preachers'  Aid  Society  v.  Rich,  45  Me. 
552;  Drew  v.  Wakefield,  54  Me.  297. 

5  Going  V.  Emery,  1  Pick.  (Mass., 
1834),  107;  Sanderson  v.  White,  18 
Pick.  (Mass.,  1836),  328;  Earle  v. 
Wood,  8  Cush.  (]\Iass.)  430,  445;  Dex- 
ter v.  Gardner,  7  Allen  (Mass.,  1863), 
242;  Bates  v.  Bates,  134  Mass.  110,  113. 

e  Chambers  v.  sit.  Louis,  29  Mo.  543. 

7  Webster  v.  Morris,  60  Wis.  366,390. 
In  Illinois  it  has  been  recently  held 
that  the  validity  of  charitable  be- 
quests, and  the  jurisdiction  of  equity 
over  them,  are  not  altogether  de- 
pendent upon  the  statute  of  Eliza- 


§   Sll.]  KULES    EEGTJLATING    CHAEITABLE    GIFTS.  1195 

§811.  The  charity  must  he  a  piihlic  one. —  Courts  of 
equity  will  not  enforce  a  trust  as  for  a  charitable  purpose  un- 
less the  purpose  is  a  public  and  not  a  private  one.  That  is  to 
say,  it  must  appear  from  the  character  of  the  gift  itself  that 
under  its  terms  some  benefit  is  to  be  conferred  upon,  or  duty 
to  be  performed  towards,  the  public  generally,  or  some  part 
thereof  consisting  of  an  indefinite  class  of  persons.  This  is  not 
to  be  understood  as  holding  that  a  gift  ior  private  charity  is  in 
<^ver7/  instance  illegal  and  void.  The  rule  merely  places  gifts 
in  trust  for  private  charity  upon  the  same  footing  as  are  other 
trusts,  and  requires  that  the  beneficiaries  of  a  private  charity 
shall  be  definitely  named,  and  that  the  trust  for  a  private 
charity  shall  not  offend  against  the  rule  of  perpetuities.^ 

The  fact  that  the  testator  expressly  designates  a  charitable 
trust  created  by  him  a  private  charity  is  not  conclusive  that  it 
is  not  a  public  charity,  and  will  not  prevent  it  from  being  up- 
held as  a  public  charity  if  it  is  such.  Thus,  where  a  testator 
left  a  sum  of  money  "  to  apply  to  the  relief  of  the  poor  and 
im fortunate  whom  I  have  aided  in  past  years,  and  also  to 
others,  as  their  judgment  may  dictate,  strictly  for  pridate  cha?'- 
ity,''^  the  court  sustained  the  gift  as  a  valid  public  charity, 
pointing  out  that  the  class  of  beneficiaries  was  indefinite,  being 
the  poor  and  indigent  generally.- 

If  the  purpose  of  a  charity  is  icholJij private  it  will  not  be  sus- 
tained if  it  violates  the  rule  against  perpetuities.  Thus,  for  ex- 
ample, a  gift  to  a  company  to  enable  it  to  keep  on  hand  a  stock 
of  corn;'  a  bequest  in  trust  to  establish  a  private  museuui  in 
the  house  of  Shakespear  at  Stratf ord-on-Avon ;  ^  or  to  sustain  a 
library  which  was  supported  by  the  private  contributions  of  its 
members;  *  or  to  provide  a  fund  for  the  purchase  of  a  cup  annu- 

beth,  but  that  a    charitable    trust  ^Thomson  v.  Shakespear,  John.  612, 

■which  is  consistent  with  public  pol-  2  De  (iex,  Fisher  &  J.  399. 

icy  may  l)e  created  for  almost  any-  *Carne  v.  Loiifr,  29  L.  J.  Cii.  503,  3 

thing  that  tends  to  promote  the  well-  De  Gex,  Fisher  &  J.  To.     As  the  fund 

doing  and  well-being  of  man  in  so-  was  to  be  apjilied  to  the  purchasing 

ciety.    Garrison  v.  Little,  73  111.  App.  of  lx)oks  for  a  library  so  long  as  ten 

402.  subscribers  remain,  and  as  the  sus- 

'Ommanney  v.  Rtitcher,  Turn.  &  ])ension  of  tiie  power  of  alienation 

RuK.  2W.     And  see  also  t.^  H9U-«'J2.  thus  crcati'tl   might  cxIimkI  b«'yond 

^Hullard    v.    Ghandl(.T,    119    Mass.  tim  life  or  lives  in  being,  the  gift  was 

532,  21  N.  K  li.  9.-) I.  voi.i. 

'Attorney-(ieneral    v.    Haberdash- 
ers' C<j.,  1  My.  &  K.  402,  420. 


1196  LAW    OF    WILLS.  [§  811. 

{ 

ally  for  a  yacht  race ; '  or  to  keep  the  clock  of  the  testator  in  re- 
uair ;  -  or  to  establish  a  school  in  a  town,  where  it  does  not  affirm- 
atively appear  but  that  the  school  might  be  a  private  school,^  has 
been  held  invalid  as  a  charitable  gift,  being  wliolly  for  a  private 
purpose.  So  also  the  care  and  preservation  of  a  family  home- 
stead in  perpetuity  do  not  confer  a  benefit  upon  the  public.  At 
the  most  this  is  only  i}^.  private  charity  for  the  lenefit  of  the  descend- 
ants of  the  testator.  Hence,  a  devise  to  A.  and  his  heirs  of  the  fam- 
ily homestead,  always  to  he  kept  in  good  repair  for  the  henefit  of 
the  family,  is  invalid;  and  A.  will  take  it  free  from  the  trust.* 
So,  too,  where  the  testator  directs  his  trustees  to  keep  his  home- 
stead open  in  perpetuity  for  the  reception  and  entertainment 
of  ministers  and  others  traveling  in  the  service  of  truth,  the 
gift  is  not  a  public  charity.  The  trust  is  one  for  hospitality 
alone,  not  for  charity  and  religion,  though,  as  a  matter  of  fact, 
it  is  a  part  of  the  religion  of  the  Society  of  Friends,  to  which 
the  testator  belonged,  to  offer  hospitality  to  the  ministers  and 
members  who  attend  its  yearly  meetings.^ 

"While  it  is  true  that  a  private  subscription  library,  whose 
books  are  circulated  exclusively  among  its  paying  members,  is 
not  a  public  charity,''  yet  the  mere  fact  that  the  circulation  of 
the  books  of  a  library  is  limited  to  a  particular  class  of  persons 
is  never  enough  to  render  it  a  private  charity ;  provided  such 
persons  constitute  an  indefinite  portion  of  the  public  generally. 
Thus,  a  Sunday  school  library  is  a  public  charity,  if  the  circu- 
lation and  the  use  of  its  books  are  not  confined  to  children  in 
the  school  W'ho  are  members  of  the  families  of  those  who  suj^- 
port  the  school,  or  of  the  families  of  persons  belonging  to  a  church 
of  which  the  school  is  a  part,  but  extend  to  all  the  children  of 
the  neighborhood  who  may  go  to  the  school.''  And  the  same 
reasoning  applies  in  the  case  of  a  library  which,  though  ^>r^■- 
marily  for  a  limited  class  of  beneficiaries,  as  men  of  letters  and 
clergymen,  is  not  confined  to  them,  but  may  be  used  by  the  pub- 
lic generally.^ 

iln  re  Nottage,  (1895)  2  Cli.  649,  12  » Kelly  v.  Nicbolls,  18  R  I.  03,  25 

Reports,  571.  Atl.  R.  840. 

2  Kelly  V.  Nichols,  18  R  L  1,  2,  21  «Carne  v.  Long,  29  L.  J.  Cli.  503,  2 
Atl.  R  906.  De  Gex,  Fish.  &  J.  75. 

3  Attorney-General  v.  Soule,  28  t  Fairbanks  v.  Lamson,  99  Mass.  533, 
Mich.  183.  534. 

4  In  re  Bartlett,  163  Mass.  509,  40  N.  » St.  Paul's  Church  v.  Attorney- 
K  R  899.  General,  164  Mass.  188,  195. 


§  Sll.]  KULES    KEGULATIXG    CHARITABLE    GIFTS.  1107 

A  friendly  society,  whose  funds,  raised  by  the  subscriptions 
of  its  members  and  by  fines  and  forfeitures  imposed  on  them, 
are  exclusively  employed  to  aid  any  of  its  members  who  may 
be  incapacitated  from  earning  a  living  by  reason  of  accident 
or  illness,  and  which  may  be  devoted  also  to  pay  annuities  to 
the  widows  or  to  the  next  of  kin  of  its  deceased  members,  is 
not  a  ]-)ublic  charitable  organization  which  is  capable  of  taking 
a  gift  in  perpetuity  for  a  charitable  purpose.^  But  a  society 
which  is  not  supported  ivholly  by  the  contributions  of  its  mem- 
bers, but  which  is  also  sustained  by  voluntary  subscriptions  by 
the  public,  and,  more  particularly,  if  it  also  appears  that  pov- 
erty is  an  absolutely  necessary  requisite  for  receiving  aid  from 
it,  is  a  public  charity,  though  its  benefits  are  confined  to  its 
members.^  A  trust  to  found  an  asylum  for  orphans  is  undoubt- 
edly valid  as  a  public  charity,  and  such  trusts  have  been  re- 
peatedly sustained.  But  a  gift  to  a  man  for  the  benefit  of  a 
private  orphan  asylum,  which  he  carried  on  wholly  at  his  ex- 
pense, is  not  for  a  public  charity,'  as  the  institution  is  strictly 
private,  and  on  its  ceasing  to  exist  the  bequest  will  not  be  given 
over  to  another  school. 

So  a  gift  of  money  to  be  distributed  for  the  benefit  of  sev- 
eral families  named,  according  as  they  shall  need  it,  is  not  a  pub- 
lic charity,  though  it  is  valid  as  a  gift  to  the  individuals  com- 
posing the  families  to  the  extent  that  it  does  not  suspend  the 
power  of  alienation  too  long.*  And  generally,  as  is  elsewhere 
pointed  out','  gifts  in  trust  for  poor  relations  are  valid,  being 
regarded  not  as  gifts  either  for  public  or  private  charity,  but 
as  gifts  to  classes  of  individuals,  the  members  of  which  are  to 
be  ascertained  by  the  trustees  exercising  their  discretion.* 

1  Cunnack  v,  Edwanls,  (1800)  2  Ch.  sense  of  the  term,  though  tlie  object 
67'J;  Bubb  v.  Read,  o  Rawle  (Pa.),  151;  of  tlie  trust  was  to  etTectuate  a  pub- 
Swift  V.  Society  of  Eastcjn,  7;i  Pa.  St.  lie  enter])rise,  partaking;  lar^a'ly  of 
302;  In  re  Clark's  Trust,  Ij.  II.  1  Cli.  an  educational  cliaracler.  World's 
Div.  497;  In  re  Dutton,  L.  li.  4  Ex.  Col.  Exposition  v.  United  States,  50 
Div,  54.  Fed.  R.  054,  0  C.  C.  i\.  58. 

-'  In  re  Buck,  Bruty  v.  Macky,  (1890)  8  ciark  v.  Taylor,  1  Drew.  013. 

2  Ch.  727.    And  it  has  very  recently  <  Liley  v.  Uoy,  1  Hare,  580. 

V»een  held  tliat  a  trust  which  wa.s  *  See  ^  592. 

created  for  tlio  purpose  of  carrying  "WL.ijster  v.   Morris,  CO  Wis.  300, 

onthe  World's  Columbian  Exposition  392;    Isaac  v.   Dcfriez,    17  Ves.   373, 

in  Chica(?o  was  not  a  jiuhlic  chari-  note;  AVhite  v.  White,  7  Ves.  423;  At- 

taljJe  trust  in  the  legal  and  technical  torney-Cionerul  v.  Price,  17  Vea  371; 


1108  LAW    OF    WIIJ.S.  [§  811, 

The  question  of  the  public  character  of  a  charity  or  of  an  in- 
stitution which  ckiiuis  a  devise  for  charitable  purposes  is  to  bo 
(h'tci'iiiiiKMl  by  the  court  upon  all  the  circumstances  proved  to 
exist  in  tlie  particular  case.  The  mere  fact  that  an  institution, 
though  it  is  carrying  on  a  public  charitable  work,  is  partly 
supported  by  private  subscriptions  from  those  persons  who,  in 
return,  enjoy  peculiar  privileges,  or  that  it  enacts  payment  from 
those  of  its  inmates  or  beneficiaries  who  are  able  to  pay,  does 
not  alone  deprive  it  of  the  character  of  a  public  charity.  If 
the  institution,  whether  it  be  a  library,  a  home  for  the  aged, 
or  a  hospital,  is  not  conducted  with  a  view  to  making  a  pecuniary 
profit,  all  its  surplus  income  being  expended  in  increasing  its 
resources,  and  if  the  public  or  any  indefinite  class  of  the  public 
Avho  are  unable  to  pa}^  are  entitled  to  tiie  use  of  its  facilities 
gratis,  it  is  a  public  charitable  institution,  though  it  may  be 
conducted  by  a  private  corporation.^ 

A  gift  in  trust  for  the  encouragement  of  a  sport  cannot  be 
regarded  as  a  charity,  though  the  practice  of  the  sport  may  be 
in  many  respects  beneficial  to  the  public.  In  England  it  has 
been  held  that  a  trust  attempted  to  be  created  by  a  testator  for 
the  purpose  of  providing  annually  and  forever  a  cup  to  be  given 
to  the  most  successful  yacht  of  the  season,  though  stated  to  be 
bequeathed  for  the  purpose  of  encouraging  the  sport  of  yachting, 
Avas  not  a  valid  charital)le  gift  under  the  statute  of  Elizabeth.^ 
Doubtless,  under  the  principle  settled  in  this  case,  a  devise  for  the 
purpose  of  establishing  or  maintaining  a  race-track,  base-ball 
ground  or  a  club-house  for  the  promotion  of  athletics  would  be 
invalid.  Nor  could  trusts  for  such  purposes  be  regarded  as  char- 
itable merely  because  they  tend  to  preserve  or  promote  the 
physical  and  mental  health  of  those  who  participate  in  them ; 
for,  Avhile  such  a  result  may  flow  from  them,  it  is  wholly  inci- 
dental thereto,  and  by  no  means  always  necessarily  follows. 
The  object  of  all  mere  sports,  whether  practiced  in  public  or  in 
private,  is  amusement  and  relaxation,  and  while  it  may  be  es- 

Gillain  v.  Taylor,  L.  R.  16  Eq.  581;  Park's  Adm'r   v.   American    Home 

]Malioa  V.  Savage,  1  Sch.  &  Lef.  111.  Missionary  Soc,  63  Vt.  19,  20  Atl.  K. 

Where  A.  lias  power,  under  a  will,  to  107. 

dispose  of  money  in  charitable  gifts,  i  Phillips  v.  Harrow  (Iowa,  1807),  61 

he  cannot  give  it  to  private  persons  N.  W.  R.  434. 

in  recognition    of  kindness  and  in  ^jni-e  Nottage,  (1895)  2  Ch.  049,  13 

testimony  of  affection  and  regard.  Reports,  571;  Jones  v.  Palmer,  id. 


812.] 


KULES    KEGULATIXG    CHAEITABLE    GIFTS. 


llUO 


sential  to  society  as  it  is  at  present  constituted  that  anything 
which  furnishes  relaxation  and  amusement  is  not  to  be  con- 
demned, still  they  cannot  correctly  be  regarded  as  charities 
within  the  existing  legal  rules.  It  should  not  be  understood, 
however,  that  a  testamentary^  gift  to  a  corporation  is  invalid 
merely  because  the  object  of  the  corporation  is  sport  or  amuse- 
ment. Social  or  sporting  clubs  may  of  course  take  real  and 
personal  property  for  the  purpose  of  their  incorporation  if  they 
are  authorized  to  do  so  by  statute. 

§  812.  Tlie  validity  of  bequests  for  religious  purposes.^ 
Testamentary  trusts  of  real  or  personal  property  created  for 
any  purpose  connected  with  the  advancement  of  the  Christian 
religion  are  unquestionably  valid  as  public  charities.  So,  be- 
quests of  money  for  repairing  and  for  ornamenting  churches,^ 
or  for  erecting  or  sustaining  them,  have  been  repeatedly  sus- 
tained.- In  very  many  cases  bequests  for  the  promotion,  sup- 
port and  propagation  of  religion  generally  have  been  ui)held 


iHoare  v,  Osborne,  L.  R.  1  Eq.  583, 
585;  In  re  Rigley's  Trust,  36  L.  J.  Ch. 
147. 

-Locks\-ood  V.  Weed,  2  Conn.  287; 
Grissom  v.  Hill,  17  Ark.  483;  Trustees 
V.  Eagle  Bank,  7  Conn.  476;  Miller  v. 
Cliittenilen.  2  Iowa,  315;  Seda  v. 
Hul;lo.  75  Iowa,  429.  431,  50  N.  W.  R. 
685;  Kinney  v.  Kinney,  86  Ky.  610,  6 
S.  R.  593;  Brown  v.  Kelsey,  2  Cush. 
(Mass.)  243,  250;  In  re  Bartlett,  163 
Mass.  509,  40  N.  E.  R.  899;  Teele  v. 
Bisliop  of  Derry  (Mass..  1897).  47  N.  E. 
li.  422;  McAlister  v.  Burgess  (Mass., 
1H9S),  :j7  N.  E.  R  173  (for  the  poor 
churches  of  Boston);  Goode  v.  ]\Ic- 
Pherson,  51  Mo.  136;  Preston  v.  Hawk, 
3  A|)i).  Div.  43,  37  N.  Y.  Supp.  1079; 
liitiivar  V.  Fiison.  8  Pa.  St.  327;  .Metli- 
odLst  Church  v.  Reiningt(»n,  1  Watts 
(Pa.).  21H;  Potter  v  Thornton,  7  R.  I. 
2.52;  Baptist  S'xiety  v.  Hall,  8  It  I, 
234;  Brr)wn  v  Baj)tist  Society,  9  R  I. 
177;  Krifrson  v.  General  As-semhiy,  7 
II(Msk.  (Tenn.)083;  Webster  v.  .AJor- 
rJH,  06  Wis.  366.  3S0;  WhiUi  v.  Whil.-. 
2  Iti'jKjrts,  :{80,(lH93)2Cli.  41;  Adiiaru 
V.  Cole,  6  Beav.  353  (a  bc<iue»t  to  re- 


pair the  church  and  organ  loft); 
Turner  v.  Ogden,  1  Cox,  316  (a  be- 
([uest  to  keep  the  chimes  of  a  cliurcli 
in  repair).  A  bequest  to  repair  the 
churcli,  to  build  an  organ  and  to 
maintain  the  parsonage  is  a  valid 
ciiaritable  gift.  Bishop's  Residence 
Co.  V.  Hudson,  91  Mo.  676.  A  devise 
in  trust  for  the  benefit  of  the  Friends' 
Meeting  House  which  is  situated  in 
the  town  of  A.  is  valid,  though  the 
Friends'  Meeting  is  a  voluntary  .asso- 
ciation and  not  a  corporate  body. 
Earle  v.  Wood,8Cush.  (Mas.s.)  430. 437; 
Dexter  v.  Gardner,  7  Allen  (Mass.), 
243,  247.  A  condition  attaclied  to  a 
bequest  to  a  clnuxdi  which  the  testa- 
tor had  attended  regularly,  that  it  is 
to  be  paid  "  by  a  trustee  to  help  in 
the  support  of  preaching  as  long  as 
such  is  kept  iq)  as  at  present,"  is  sat- 
isfactorily fulfilloil  by  a  continuation 
of  the  i>articular  religious  services  of 
the  dcnoniiiiation  to  wiiich  the  8o< 
<'icty  i)('l<iMgt'<l,  as  they  were  con- 
ducli^l  (luring  lilt!  lifcof  the  ti'stalor. 
King  v.  (irant,  55  Conn.  166,  10  Atl. 
\i.  501. 


1200 


LAW    OF    WILLS. 


[§  812. 


as  charitable  gifts,^  irrespective  of  its  particular  form,  pro- 
vided no  rule  of  public  morality  is  violated  by  those  who  are 
its  adherents  in  the  performance  of  the  religious  rites  and  doc- 
trines. 

A  bequest  to  a  Eoman  Catholic  convent  is  valid.  If  it  ap- 
pears that  the  convent  is  unincorporated,  the  court  will  direct 
that  the  property  shall  vest  in  the  superior  of  the  convent,  the 
bishop  of  the  diocese  or  some  other  person,  who  will  take  the 
property  as  a  trustee  for  the  benefit  of  the  convent.^  So,  too, 
the  validity  of  bequests  for  general  missionary  purposes  to  be 
used  in  advancing  the  spread  of  the  Christian  religion,  either  at 
home  or  in  foreign  countries,  is  admitted,^ 

Bequests  to  aid  and  promote  the  circulation  of  the  Holy 
Scriptures,  tracts,  religious  newspapers  and  other  religious  lit- 


1  Union  Baptist  Soc.  v.  Candia,  2 
N.  II.  20;  Brewster  t.  McCall,  15  Conn. 
274;  American  Tract  Soc.  v.  At  water, 
30  Ohio  St.  77:  Phillips  v.  Harrow 
(Iowa,  1897),  61  N.  W.  R.  434  In  this 
case  the  devise  was  "for  religion, 
without  regard  to  sects,  and  to  in- 
clude all  denominations  professing 
to  work  for  the  good  of  humanity." 
Miller  V.  Teachout,  24  Ohio  St.  525; 
North  Adams  v.  Fitch,  8  Gray  (Mass.), 
421 ;  Going  v.  Emer}%  16  Pick.  (Mass.) 
107;  Gibson  v.  McCall,  1  Rich.  Law 
(S.  C),  174;  Attorney-General  v.  Jolly, 
1  Rich.  Eq.  (S.  C.)  99. 

2  In  the  Goods  of  McAuliffe,  L.  R 
P.  D.  (1895),  290, 292;  Banks  v.  Phelan, 
4  Barb.  (N.  Y.)  80;  Academy  v.  Clem- 
ens, 50  Mo.  167.  It  is  settled  beyond 
all  dispute  that  the  maintenance  of 
religious  worship  is  a  jjublic  charity, 
irrespective  of  the  particular  sect  or 
denomination  in  question :  and  a  de- 
vise for  religious  purposes  is  not  void 
for  uncertainty  whether  the  bene- 
ficiaries be  regarded  as  those  who 
attend  the  services  for  which  it  was 
intended,  or  the  inhabitants  of  a 
place  in  which  the  church  is  located. 
Appeal  of  Mack  (Conn.,  1898),  41  Atl. 
R242. 

3  Carter  v.  Balfour,   19  Ala.   814; 


Am.  Bible  Soc.  v.  Wetmore,  17  Conn. 
181;  King  v.  Grant,  55  Conn.  166,  10 
Atl.  R.  505;  Kinney  v.  Kinney,  86 
Ky.  610,  6  S.  W.  R  593;  Convention 
V.  Partridge,  65  Me.  92;  Straw  v.  So- 
ciety. 67  Me.  493,  494;  Dascomb  v. 
Martin,  80  Me.  223,  232,  13  Atl.  R.  888; 
Howard  v.  Society,  49  Me.  288;  Mis- 
sionary Society  v.  Chapman,  128 
Mass.  265, 207  (in  this  case  a  gift  "  for 
the  missionary  cause  in  the  Method- 
ist Episcopal  Church "  was  held  to 
be  too  indefinite,  and  it  was  conse- 
quently void  as  a  charity);  Sohier 
V.  St.  Paul's  Church,  12  Met.  (Mass.) 
250,  260  ("  for  the  support  of  a  city 
missionary  ") ;  Fairbanks  v.  Lamson, 
99  Mass.  533,  534  ("  for  the  purposes 
of  the  Amei-ican  Board  of  Commis- 
sioners of  Foreign  Missions,  and  to 
promote  the  pious  objects  thereof"); 
Bartlott  V.  King,  12  Mass.  537;  Lane 
V.  Eaton  (Minn.,  1897),  71  N.  W.  R. 
1031;  Mannix  v.  Purcell,  46  Ohio  St. 
102,  19  N.  E.  R  572;  Naumann  v. 
Wiedman,  182  Pa.  St.  263,  267,  37  Atl. 
R  863;  Domestic  &  For.  Miss.  So- 
ciety's Appeal,  30  Pa.  St.  425;  Dick- 
son V.  Montgomery,  1  Swan  (Tenn.), 
348;  In  re  Fuller's  Will,  75  Wis.  431, 
44  X.  W.  R  304 


§   S12.]  RULES    KEGULATIXG    CHAKITABLE    GIFTS.  1201 

erature  have  been  often  approved  of  by  tlie  courts.^  So,  too, 
gifts  for  the  support  and  maintenance  of  preaching  have  fre- 
quently been  sustained.^  So,  too,  bequests  for  the  establish- 
ment and  maintenance  of  theological  seminaries,^  or  for  the 
general  purpose  of  supporting  indigent  young  men  while  they 
are  studying  for  the  ministry,  to  be  applied  according  to  the 
discretion  of  the  trustees,  have  been  upheld.* 

The  rule  is  that  a  gift  to  support  and  to  propagate  the  preach- 
ing of  any  system  of  Christian  doctrine  or  teaching  is  a  valid 
charitable  gift.  But  the  testator  must  either  point  out  clearly 
and  specifically  what  particular  division  of  the  Christian  church 
he  wishes  to  favor,  or  he  must  appoint  a  trustee  to  hold  the 
legal  title  and  select  the  specific  mode  of  the  practical  appli- 
cation of  his  bounty  to  advance  the  interest  of  some  particular 
branch  of  the  Christian  church.  If,  for  example,  the  testator 
shall  devise  property  to  trustees  for  the  benefit  of  Congrega- 
tional churches,  as  they  may  in  their  discretion  select,  the  power 
of  the  trustees  is  exclusive,  and  the  court  will  not  receive  evi- 
dence to  show  that  the  testator  intended  any  one  branch  of  the 
Congregational  church  more  than  another.'^  If  the  testator 
has  not  limited  his  beneficence  to  any  particular  sect  of  Chris- 
tians, but  has  left  the  matter  of  the  selection  to  his  executor 
or  a  trustee,  or  to  some  one  whom  the  court  may  appoint  as 
such,  it  is  only  in  case  of  a  plain  and  palpable  abuse  of  such 
discretion  that  a  court  of  equity  will  interfere  as  between  sev- 
eral claimants  seeking  to  obtain  shares  in  the  gift.* 

1  Simpson  v.  Welcome,  73  IMe.  496;  Pillsbury,  1  Greenl.  (Me.)  271;  Kim- 
Fairbanks  V.  Lamson,  99  Mass.  5:J;J,  ball  v.  Universalist  Society,  34  Me. 
5.34;  Winslow  V.  Cummings,  3  Gush.  424;  Ayres  v.  Mead,  16  Conn.  291; 
Plass.)  358;  Bliss  v.  Bible  Society,  2  Baptist  Soc.  v.  Wilson,  2  N.  H.  508; 
Allen  (Mass.),  334;  Bartlett  v.  Nye,  Second  Soc.  v.  First  Soc,  14  N.  H. 
4  Mete.  (Mas.s.)  378;  In  re  Look's  Will,  514;  Brown  v.  Concord,  33  N.  H.  290. 

1  Con.  Sur.  403,  5  N.  Y.  Supp.  50;  'Phillips  Academy  v.  King,  12 
Hornljeck  v.  American  Bible  Society,  Mass.  546. 

2  Sandf.  (N.  Y.)  133;  Beall  v.  Fox,  ^Storrs  v.  Whitney,  54  Conn.  342; 
4  Ga.  404;  Reynolds  v.  Bristow,  37  McCord  v.  Ochiltree,  8  Blackf.  (Ind.) 
Ga.  283;  American  Bible  Society  v.  18;  Wliitmau  v.  Lex,  17  S.  &  R.  (Pa.) 
Marshall,  15  Oliio  St.  537.  88;  AViiito  v.  Fisk,  22  Conn.  21,  31; 

2 Trustees  of  Cory  Un.  Society  v.  AVilliains  v.  Pars<jns.  38  Ala.  299(asso- 

Beatty,  28  N.  J.  Eq.  570;  Parker  v.  ciation  for  minist«!rial  relief). 

Cowell,  10  N.  IL   149;    Williams  v.  »  Dublin's  Will,  38  N.  H.  510. 

Williams,  8  N.  Y.  525;  Brown  V.  Kel-  "Attorney-General      v.      :^Iceting 

sey,  2  Cush.  (Maas.)  213;  Shapleigh  v.  IIihis.-,  :j  Gray  (Mass.),  58;  Miller  v. 
76 


1202  LAW    OF    WILLS.  [§  813, 

§  813.  The  validity  of  bequests  for  masses  in  England  and 
America. —  The  question  of  the  validity  of  testamentary  gifts 
for  the  purpose  of  paying  for  masses,  or  for  the  purpose  of 
paying  for  prayers  to  be  offered  for  the  repose  of  the  soul  of 
the  testator,  or  for  the  repose  of  the  souls  of  other  persons,  has 
been  much  discussed.  In  England  such  a  devise  has  been  held 
illegal  as  constituting  a  disposition  of  property  in  trust  for  a 
superstitious  use  not  authorized  under  the  statute  of  charitable 
uses,  and  forbidden  by  the  statute  law  of  the  land.^ 

In  the  United  States,  where  the  provisions  of  all  the  consti- 
tutions, federal  and  state,  which  are  the  fundamental  law  of 
the  land,  permit,  and  in  fact  guarantee,  the  utmost  freedom  of 
religious  belief  and  worship,  and  forbid  the  practice  of  no  form 
of  public  worship  that  is  not  contrary  to  public  morality,  or 
that  is  not  calculated  to  disturb  the  public  peace  and  quiet,  no 
objection  can  be  made  to  a  gift,  based  upon  this  purpose,  to  a 
priest  or  otherwise,  for  the  purpose  of  paying  him  or  any  other 
person,  for  saying  prayers  for  the  dead.  The  doctrine  of  super- 
stitious uses,  as  it  was  laid  down  in  the  English  courts  under 
the  statute  1  Edw.  YL,  chapter  14,  and  other  enactments,  has 
no  place  whatever  in  any  system  of  American  jurisprudence. 
The  offering  of  prayers  for  the  dead  is  a  constituent  and  in- 
tegral part  of  the  worship  of  the  Roman  Catholic  church,  and 
a  gift  for  that  purpose,  though  it  may  be  solely  for  the  procur- 
ing of  prayers  for  the  soul  of  the  testator  or  some  other  indi- 
vidual, is  therefore  a  gift  for  a  religious  purpose  and  to  sustain 
religious  worship  according  to  the  faith  of  the  deceased.  Such 
a  gift  differs  in  no  wise  from  a  gift  to  sustain  public  preaching, 
or  to  pay  for  the  services  of  an  organist  or  a  choir,  or  to  repair 
a  church. .  So  in  Massachusetts,  Pennsylvania  and  some  other 
states  a  testamentary  gift  for  the  purpose  of  paying  a  priest 
for  offering  prayers  for  the  dead  generally^  has  been  upheld  as  a 

Gable,  10  Paige  (N.  Y.),  62;  Baptist  torney-General  v.  Fishmonger's  Co., 

Church  V.  Wetherell,  3  Paige  (N.  Y.),  2  Beav.  151, 168,  5  My.  &  Cr.  11 ;  West 

96;  Kniskern  v.  Charities,  1  Sandf.  v.  Shuttle  worth,  2  My.  &  K.  684;  In 

(N.  Y.)  142;  Presbyterian  Church  v.  re  Blundeirs  Trust,  30  Beav.  360.  363, 

Daimon,  1  Des.  (S.  C.)  154.     See  ante,  31  L.  J.  52.     See  also  Attorney-Gen- 

§^  802-804.  eral  v.  Vivian,  1  Russ.  226;  Heatli  v. 

iPo.sf,  g  837;  Adam's  Case,  4  Coke,  Chapman,  2  Drew.  417;  Cary  v.  Ab- 

104b;  Pitts  v.  James,  1   Rolle,  416;  bot,  7  Ves.  495,  and  Cro.  Jac.  51. 
Hart  V.  Brewers,  Cro.  Eliz.  449;  At- 


§  813.]  KULES    KEGULATING    CHARITABLE    GIFTS.  1203 

valid  charitable  gift  for  religious  purposes  and  as  coming  within 
the  class  of  pious  and  charitable  uses  which  are  within  the 
definition  of  a  public  charity.^ 

But  a  bequest  for  masses  may,  in  America,  be  invalid  upon 
other  grounds  than  its  purpose.  The  general  rule  that  the  bene- 
ficiaries of  a  trust,  charitable  or  otherwise,  must  be  ascertained 
and  definite,  or  ascertainable  b}"  the  trustee,  may  be  invoked. 
Hence,  in  New  York,  a  bequest  to  be  applied  by  trustees  for 
the  purpose  of  having  prayers  offered  in  a  Roman  Catholic 
church,  to  be  by  them  selected, "  for  the  repose  of  my  soul,  and 
the  souls  of  my  family,  and  also  the  souls  of  all  others  who 
may  be  in  purgatory,"  has  been  held  invalid  because  it  is  im- 
possible to  ascertain  the  clas^  of  persons  lohich  was  meant  hy  the 
testator?  If,  however,  the  bequest  is  to  an  individual  priest,  or 
to  a  duly  incorporated  Catholic  church  or  churches,  designated 
distinctly  by  the  testator  and  authorized  by  law  to  receive  and 
use  bequests  for  religious  purposes  and  not  in  trust,  as  in  the 
case  just  stated,  with  a  discretion  in  the  trustees  to  select  the 
objects  of  the  charity,  the  gift  would  be  held  valid  as  for  a  re- 
ligious purpose.^  But  in  one  instance  at  least  it  has  been  dis- 
tinctly held  that  a  bequest  to  a  church  "  to  be  used  in  solemn 
masses  for  the  repose  of  my  soul "  is  not  valid,  as  it  neither 

1  Schouler's  Petition,  134  Mass.  426.  See  also  33  Alb.  Law  J.  367-370,  fol- 

See  also,  sustaining  the  text,  Rhy-  lowed  in  In  re  Schwartz's  Will,  3  N. 

mer's  Appeal,  93  Pa.  St.  142:  Seiberfs  Y.  Supp.  134,  6  Dem.  Sur.  169;  In  re 

Appeal,  18  W.  N.  C.  276;  Elmsley  v.  McEvoy's  Estate,  3  N.  Y.  Supp.  207,  6 

Madden,  18  Grant  Cli.  (U.  C.  Ontario),  Dem.  Sur.  71 ;  Festorazzi  v.  St.  Jo- 

386;  In  re  Backes'  Will,  9  Misc.  Rep.  seph's  Church,  104  Ala.  327,  18  S.  R. 

405,  30  N.  Y.  Supp.  394;  Hagenmeyer  391;  0"Conner  v.  Gilford,  117  N.  Y. 

V.  Hanselniann,  2  Dem.  Sur.  (N.  Y.)  275:  McHugh  v.  Cole,  97  Wis.  166,  73 

87;  In  re  Zimmerman's  Will,  50  N.  Y,  N.  W.  R.  631. 

S.  395;  Harrison  v.  Brophy,  51  Pac.  R.        ^  Vanderveer  v.  McKane,  11  N.  Y. 

883;  Sherman  v.  Baker  (R  I.,  1898),  S.  808,  35  Abb.  N.  C.  105:  Ruppell  v. 

40  AtL  R.  11.     A  legacy  to  a  priest,  Schlegel,  7  N.  Y.  Supp.  936,  55  Hun, 

to  be  expended  for  masses  for  the  re-  183;  In  re  Howard^  Estate,  25  N.  Y. 

pose  of  testatrix's  soul,  is  a  religious  S.  1111,  5  Misc.  R.  295.    A  bequest, 

Ui9e,  and  valid   under   Constitution,  "I  will  and  becjueath  to  the  Catholic 

article  1,  sections  3,  4,  and  Coustitu-  jiriest  who  may  l)e  pastor  of  B.f^luirch 

tion   of  the   United   States,  amend-  wlien   this   will   shall   be   exetuited, 

ment   1,    providing   for   freedom   of  three  hundred  dollars,  that   masses 

conscience  and  n-iigious  l)olief.    Ker-  may  be  said   for  the  rejiose  of  my 

rigari  v.  Tabb.  39  At).  R.  701.  soul."  is  valid.     ]\Ioran  v.  iMoran,  73 

niollaiid  v.  Alcock,  20  Abb.  N.  C.  N.  W.  R.  617  (Iowa,  1897). 
447,  10  N.  i;.  R.  305, 108  N.  Y.  312,316. 


120:t 


LAW    OF    WILLS. 


[§  814. 


creates  a  valid  charitable  trust,  nor  is  it  valid  as  a  direct  gift 
to  the  church  for  reli<^ious  purposes.^ 

§  814.  (lifts for  educational  imrposes,  to  establish  schools, 
pay  teachers,  etc. —  Gifts  for  the  purpose  of  advancing  the 
cause  of  education  arc  universally  admitted  to  be  valid  as  })ub- 
lic  charitable  gifts  both  under  the  statute  of  Elizabeth,  and 
also  in  the  United  States  in  those  states  "vvhere  that  statute  is 
expressly,  or  by  implication,  not  in  force.  Hence  gifts  in  gen- 
eral terms  for  education,  not  specifying  in  what  particular 
mode  they  are  to  be  applied,-  are  valid  where  trustees  are  also 
appointed,  for  in  such  cases  courts  of  equity  will  contrive  a 
plan  for  carrying  the  gift  into  practical  effect.  So,  a  fortiori^ 
a  gift  to  found  public  schools  or  colleges,'  or  for  the  particular 
purpose  of  founding  schools,  seminaries  and  colleges,  or  con- 


1  Festorazzi  v.  St.  Joseph's  Catholic 
Church  of  Mobile,  18  S.  R  394,  104 
Ala.  327.  "  If  the  bequest  had  been  of 
a  sum  of  money  to  an  incorporated 
Roman  Catholic  church  or  churches, 
duly  designated  by  the  testator  and 
authorized  by  law  to  receive  such 
bequests  for  the  purpose  of  the  sol- 
emnization of  masses,  a  different 
question  would  arise.  But  such  is 
not  the  case.  The  bequest  is  to  the 
executors  in  trust,  to  be  by  them  ap- 
plied for  the  purpose  of  having  pray- 
ers offered  in  any  Roman  Catholic 
church  thej^  niaj^  select."  Holland  v. 
Alcock,  108  N.  Y.  312,  2  Am.  St.  R 
420.  A  bequest  to  the  Roman  Cath- 
olic bishop  of  the  diocese  of  G.,  '•  to 
be  used  and  applied  .  .  .  for  masses 
for  the  repose  "  of  the  testator's  soul 
and  the  repose  of  tlie  souls  of  certain 
otlier  persons,  is  void,  as  it  creates  a 
trust  without  any  beneficiaries  to 
enforce  it.  McHugh  v.  McCole,  72 
N.  W.  R  631,  97  Wis.  1G6. 

-  Wliicker  v.  Hume,  14  Beav.  509, 
7  H.  L.  Cases,  124;  McAllister  v.  Mc- 
Allister, 46  Vt.  272;  Sears  v.  Chap- 
man, 158  Mass.  400;  Saltonstall  v. 
Sanders,  11  Allen  (Mass.),  146;  Treat "s 
Appeal,  30  Conn.  113;  Bircliard  v. 
Scott,  39  Conn.  63;  Newsomv.  Slark, 
46  Ga.  88. 


3  Fuller  V.  Plainfield  Academy,  6 
Conn.  544;  Silcox  v.  Harjjer,  32  Ga. 
639;  Crerar  v.  Williams,  145  111.  625, 
44  111.  A  pp.  497,  34  N.  E.  R  467;  Piper 
v.  Moulton,  72  Me.  155;  Boxford  Re- 
ligious Soc.  v.  Hari'iman,  125  Mass. 
321,  327;  Davis  v.  Barnstable,  154 
Mass.  229;  Taintor  v.  Clark,  5  Allen 
(Mass.),  67,  68;  Sears  v.  Chapman,  158 
Mass.  400,  401,  33  N.  E.  R  004;  Benfly 
v.  Hopkins,  14  Pick.  (Mass.)  240; 
Trustees  v.  Adams,  65  N.  H.  225,  18 
AtL  R.  777;  Green  v.  Black  well  (N.  J. 
Eq.,  1897),  35  Atl.  R  375;  Newcomb 
V.  St.  Peters.  2  Sandf.  Ch.  (N.  Y.)  636; 
State  V.  McGovern,  2  Ired.  (N.  C.) 
Eq.  9;  In  re  Jolms' Will  (Oreg.,  1897), 
47  Pac.  R  34;  Raleigh  v.  Umatilla, 
15  Oreg.  172,  13  Pac.  R.  890;  Zanes- 
ville.  etc.  Co.  v.  Zanesville,  20  Ohio 
St.  483;  Pickering  v.  Shotwell,  10  Pa, 
St.  23:  Price  v.  Maxwell,  28  Pa.  St. 
23;  Wright  v.  Lynn,  9  Pa.  St.  433; 
Pell  v.  Mercer,  14  R  I.  439;  Bell  v. 
Alexander,  22  Tex.  350;  Pasclial  v. 
Acklin,  27  Tex.  196;  Welister  v.  Mor- 
ris, 66  Wis.  366;  Dent  v.  Allcroft,  30 
Beav.  336;  Graham  v.  Paternoster,  31 
Beav.  30:  Fisher  v.  Brierly,  1  De  Gex, 
F.  &  J.  643;  Russell  V.  Allen,  107  U.  S. 
163;  Baptist  Association  v.  Hart,  4 
Wlieat.  (U.  S.)  1;  Vidal  v.  Girard,  3 
How.  (U.  S.)  127;  Perrin  v.  Carey,  24 


§  su.] 


KULES    EEGULATIXG    CHARITABLE    GIFFS. 


1205 


tributing  to  the  maintenance  of  those  already  in  operation,^ 
to  pay  the  salaries  of  teachers  in  the  public  schools,-  to  aid  in 
the  education  of  poor  children,'  to  educate  colored  children,* 
to  establish  a  public  school  library,'  to  increase  the  amount  of 
a  public  school  fund,®  for  the  education  of  young  persons  in  the 
useful  and  economic  arts,^  for  the  education  of  poor  students  for 
the  Protestant  ministry  or  for  the  Catholic  priesthood,^  or  to 
establish  a  parish  school  under  the  supervision  of  the  authori- 
ties of  a  church,^  is  valid  as  a  charitable  gift. 

A  devise  in  trust  to  establish  a  public  library,^''  or  for  a  museum 
at  a  universitv,^^  is  likewise  a  valid  charitable  fiift.^- 

The  question  may  arise,  is  the  library,  museum  or  educational 
institution  a  public  charitable  institution  within  the  meaning 
of  a  bequest  to  the  public  library,  or  to  the  public  schools  of  a 
particular  place  ?  The  fact  that  the  corporation  which  has  the 
supervision  and  control  of  its  work  is  not  a  public  corporation, 
or  the  fact  that  persons  may,  upon  the  payment  of  the  proper 


How.  (U.  S.)465;  McDonougla  v.Mur- 
dock,  15  How.  (U.  S.)  367;  Fountain 
V.  Ravenel,  17  How.  (U.  S.)  369, 384. 

1  Trustees  v.  Peaslee,  15  N.  H.  317; 
Wetmore  v,  Parker,  52  N.  Y.  450; 
Franklin  v.  Armtieid,  2  Sneed  (Tenn.), 
305;  Miller  v.  Porter.  53  Pa.  St.  292. 
And  see  also  cases  cited  in  last  note. 

-  Sanderson  v.  White,  18  Pick. 
(Mass.) 328;  Webster  v.  Wiggin  (R.  I., 
1898),  31  Atl.  R.  824,  82G. 

3  Green  v.  Blackwell  (N.  J.  Eq.),  35 
AtL  R.  375;  Dye  v.  Beaver  Creek 
Church  (S.  C),  26  S.  E.  R.  717;  Heuser 
V.  Allen,  42  IlL  425;  State  v.  Griffith, 
2  DeL  Ch.  392. 

*  Ex  parte  Lindley,  32  Ind.  367. 

*  JIaynard  v.  Woodward,  30  ^Micli. 
423. 

«  Be.lford  V.  Bedford  (Ky.),  35  S.  W. 
R.  920. 

7  WeVjster  v.  Morris,  00  Wis.  300, 395. 

"Swasey  v.  Aiiierinin  Bai)tistPub. 
Soc.  57  Me.  523;  Tiieologir-ai  Seminary 
V.  Attorney-General,  135  Mass.  285, 
299;  Brennan  v.  Winkler,  37  S.  C. 
457,  10  S.  E.  R.  190.  A  bequest  pro- 
vifling  for  the  education  of  "two 
young  men  for  uU  coming  time  fur 


the  Christian  ministry"  is  valid. 
Field  V.  Drew  Theological  Seminary, 
41  Fed.  R.  371. 

9  Halsey  v.  Convention  of  Protest- 
ant Episcopal  Church  (Md.),  23  Atl. 
R.  781;  Hanson  v.  Little  Sisters,  79 
Md.  434.  32  Atl.  R.  1052. 

10  Beurhaus  v.  Cole,  94  Wis.  017. 029; 
Dascomb  v.  Martin,  80  Me.  223,  232. 13 
Atl.  R.  8S8;  Penny  v.  Croul,  75  Mich. 
471,  43  N.  W.  R.  049;  Douoluigh's  Ap- 
peal,86  Pa.  St.  305;  Drury  v.  Natick,  10 
Allen  (Mass.),  109;  Duggau  v.  Slocum, 
83  Fed.  R  244. 

11  Winthrop  v.  Attorney-General, 
128  Mass.  258,  201. 

i'^  A  gift  to  "indigent young  men  to 
aid  tiiem  in  fitting  tliemselves  for  the 
evangelical  ministry"  is  not  void  for 
uncertainty.  The  words  "  indigent  " 
and  '•evangelical"  are  sufficiently 
definite.  "They  ilescribe  a  man  who 
is  without  sufficient  means  of  his 
own.  and  whom  no  i)erson  is  bound 
and  ablo  to  su|)port,  to  enal»lo  him  to 
prejiare  himself  to  preach  thegositel." 
Storr's  Agric.  School  v.  Whitney,  54 
Conn.  312,  352.  See  also  Hunt  v.  Fow- 
l.T,  121  111.  209. 


120G  LAW    OF    AVIJ.LS.  [§  815. 

fees,  subscribe  to  it  for  a  definite  period,  and  during  that  time 
may  enjoy  peculiar  privileges  in  taking  out  books,  is  never  con- 
clusive. If  the  corjioration  was  not  conducted  with  a  view  to 
pecuniary  profit,  all  the  income  l>eiug  employed  in  augmenting 
the  number  of  books,  and  where  the  public  was  entitled  to  the 
use  of  the  books  in  the  reading-room,  it  is  a  public  institution 
though  carried  on  by  a  private  corporation.^ 

§815.  Gifts  for  scientific  purposes. —  Testamentary  gifts 
bestowed  b}^  the  testator  for  the  purpose  of  promoting  science 
and  education,  and  to  secure  a  wider  diffusion  of  knowledge 
generally,  are  valid  as  charities. 

Under  this  classification  donations  for  the  purpose  of  pro- 
moting horticulture  and  agriculture,  and  "  for  other  philosoph- 
ical and  philanthro})ical  purposes;  "'-  for  "  the  advancement  anil 
propagation  of  education  in  economic  and  sanitary  science ;  "  ■' 
for  the  promotion  of  the  art  of  medicine;*  to  support  a  histor- 
ical society ; '"  for  the  benefit  of  societies  organized  for  the  pre- 
vention of  cruelty  to  animals,  and  to  improve  the  breeding  of 
animals,  and  various  bequests  for  similar  purposes,  have  been 
sustained  as  valid." 

The  promotion  of  art,  including  in  the  term  sculpture  and 
painting,  though  not  perhaps  within  the  letter  of  the  statute  of 
Elizabeth,  is  certainly  within  its  spirit.  Art  is  educational.  It 
refines  and  enriches  the  mind,  and  renders  more  pleasant  and 
healthful,  and  consequently  more  useful,  the  lives  of  all  who 
are  brought  under  its  influence.  It  is  for  the  general  public 
interest  that  art  should  flourish,  and  the  law  will  foster  art  so 
far  as  may  be  done  consistently  with  recognized  and  settled 
principles.  Hence,  bequests  for  the  founding  of  art  institutes 
and  museums,  and  for  the  purpose  of  giving  prizes  to  the  same, 
have  been  held  to  be  valid.^ 

1  Phillips  V.  Harrow  (Iowa,  1897),  61  ^  jn  a  recent  case  a  gift  to  sustain 

N.   W.  R.  434.     And  see  also  ante,  an  anti-vivisection  society  was  sus- 

pp.  1197,  1198.  tained  as  a  valid  charitable  gift.     In 

2Rotch  V.  Emerson.  105  Mass.  431,  re  Foveaux,  (1895)  2  Ch.  501. 

433.  '  Almy  v.  Jones,  17  R.  I.  265,  269, 21 

3  In  re  Berridge.  63  Law  Times,  470.  Atl.  R.  616:  British  Museum  v.  White, 

*Stratton    v.   Physio-Medical   Col-  2  S.  &  8.  594;  Yates  v.  University, 

lege,  149  Mass.  505,  21  N.  E.  R.  874.  L.  R.  8  Ch.  App.  454.  L.  R  7  H.  L.  C. 

5  Missouri     Historical     Society    v.  438;  Coates  v.  McKillop,  58  L.  T.  212. 
Academy  of  Science  (Mo.,  1894),  8  S. 
W.  R.  346. 


§  816.]  RULES    REGULATING    CHARITABLE    GIFTS.  120T 

§816.  Testamentary  proYisions  for  the  poor  —  Validity 

of. —  Dex'ises  and  bequests  for  the  poor  and  indigent  generally, 
or  for  the  poor  of  a  certain  city,  district  or  neighborhood,  are 
valid  under  the  statute  of  Elizabeth,  and  also  where  that  stat- 
ute is  not  recognized.  To  alleviate  poverty,  to  aid  those  who 
are  in  indigency,  and  to  enable  them  to  help  themselves,  have 
always  been  recognized  as  evincing  the  true  spirit  of  charity 
and  humanity  in  every  system  of  philosophy,  religion  and 
ethics.  "  The  poor  ye  have  always  with  you;  wliensoever  you 
Avill  you  may  do  them  good,"  said  the  Founder  of  Christianity, 
and  this  saying  of  Christ  has  been  observed  and  followed  by 
Christians  of  all  periods  as  a  fundamental  injunction  of  the 
Master. 

In  view  of  the  prominence  of  the  duty  of  aiding  the  poor  in 
the  system  of  Christian  belief  as  taught  by  the  Founder  of 
Christianity,  and  as  shown  in  the  practice  of  the  church  in  all 
asres,  a  erift  to  one  or  more  churches  of  a  certain  denomination, 
for  the  benefit  of  the  poor  of  the  church  is  particularly  favored 
by  the  courts.^  The  objection  that  aiding  the  poor  is  not 
within  the  corporate  and  charter  power  of  the  church,  as  a  re- 
ligious institution,  or  that  it  is  foreign  to  the  objects  and  pur- 
poses of  such  institutions,  has  absolutely  no  weight  whatever.^ 
And  a  devise  to  the  poor  of  a  church  or  a  parish  is  not  void 
for  uncertainty  where,  according  to  the  rules  and  discipline  of 
the  church  as  organized  under  the  statute,  the  rector,  or  the 
<leacons,  or  some  otiior  definite  person  or  board,  is  its  agent 
with  power  to  determine  what  persons  in  the  parish  are  poor 
and  worthy  to  receive  aid  from  funds  provided  for  the  pur- 
pose.^ And  in  New  York,  where  a  bequest  which  is  imk^finite, 
either  in  its  purpose  or  in  the  beneficiaries  named,  is  absolutely 
invalid,  a  bequest  to  designated  churches  "  to  buy  coal  for  the 
j)oor  of  said  churches  "  was  sustained,  as  the  purpose  "  to  buy 

1  Wfiitman  v.  Lex,  17  S.  &  R.  (Pa.,  2Conklin  v.  Davis,  63  Conn.  377, 

1827).  88,  90;  Attorney -(Jeiienil  v.  Old  28  Atl.  R.  5:57  (holding  a  gift  to  the 

ficmth  Church,  13  Allen  (.Mass.).  474,  j)oor  of  a  chiircli  valid  a.s  a  gift  for 

491.     (Sei!  this  case  frtr  a  full  dis(rus-  maintenance  of  the  gospi-l);  Succe.s. 

Rion  of  the  suhject,  and  for  a  very  sion  of  Audi.  3U  La.  Ann.  1013.  3  S.  R. 

Ktriking  e.\aiii|(leof  tiie  way  in  wlii<*h  227. 

money,  intended  for  the  church  iM)or,  3(  ;,„,(liich's  Appeal,  'u    Conu.  275, 

may  he  niismanagerl  and  diverted  hy  IM  Atl.  li.  10. 
the  negligence  of  the  trustees.) 


1208  LAW   OF  WILLS.  [§  81T. 

coal  "  was  undoubtedly  germane  to  the  purpose  for  which  the 
churches  existed.'  The  great  majority  of  the  decisions  in  both 
England  and  America  sustain  the  rule  that  gifts  to  the  poor, 
or  to  indigent  persons,  or  to  those  in  needy  and  necessitous  cir- 
cumstances, either  generally  ^  or  with  more  particularity  to 
such  persons  resident  in  a  particular  place,  are  not  void  hecause 
of  the  indejimieneRs  of  the  class  of  henofieiaries? 

§  817.  Definition  and  classification  of  the  poor  —  Gifts  l)y 
will  to  municipal  corporations  for  the  benefit  of  the  poor. — 
Tlie  duty  of  caring  for  those  persons  who  are  within  the 
signification  of  the  term  paupers  is  customarily  imposed  by 
statute  upon  the  municipal  or  g'wa^^municipal  corporation  in 
which  they  may  be  residents.  Adequate  funds  to  enable  the 
.corporation  properly  to  perform  this  duty  are  usually  supplied 
by  public  taxation,  which  is  levied  upon  the  property  located 
Avithin  the  territorial  limits  of  the  corporation,  or  which  are 
derived  from  other  sources,  according  to  circumstances.*  Ac- 
cording to  the  majority  of  the  decisions,  gifts  of  money  or  real 
property  to  municipal  corporations  in  trust  '■'•for  the  poor''''  are 
valid,  and  these  corporations  have  capacity,  in  the  absence  of 
statute,  to  take  and  administer  them  as  intended  by  the  donor. 

1  Bird  V.  Merkllee,  144  N.  Y.  544,  39  by  a  trustee  was  void,  as  no  restric- 
N.  E.  R  645,  reversing  26  N.  Y.  Supp.  tion  as  to  locality  was  placed  upon 
1021.    Compare  Simmons  v.  Burrell,  the  class  of  poor);  Howard  v.  Ameri- 
28  N.  Y.  Supp.  625,  where  a  gift  to  can  Peace  Society,  49  Me.  288,  303 
procure  clothes  for  poor  children  In  Darcy  v.  Kelly,  153  Mass.  435,  437 
a  church  was  held  invalid.  Odell  v.  Odell,  10  Allen  (Mass.),  1,  4 

2  Succession  of  Auch,  39  La.  Ann.  Hesketh  v.  Murphy,  36  N.  J.  Eq.  304 
1043,  1045.  Urmey  v.  Wooden,  1  Ohio  St.   160 

3  Goodrich's  Appeal,  57  Conn.  275,  Mclntire  v.  Zanesville,  17  Ohio  St 
37  Atl.  R.  395  ("the  worthy  poor  of  352;  Nauman  v.  Weidman  (Pa.  St.), 
the  town,  .  .  .  excluding  from  37  Atl.  R.  863;  Beurhaus  v.  Cole,  94 
assistance  or  aid  the  criminal  class,  Wis.  617,629;  Webster  v.  Morris,  66 
or  the  habitually  intemperate,  in-  Wis.  366,  384;  Heiss  v.  Murphy,  40 
dolent  and  lazy");  Prickett  v.  Peo-  Wis.  276;  Lorings  v.  Marsh,  6  Wall, 
pie,  88  111.  115;  Heuser  v.  Harris,  42  111.  (U.  S.)  337;  In  re  Darling,  (1896)  1  Ch. 
425;  Erskine  v.  Whitehead,  84  Ind.  50;  Farquhar  v.  Darling,  id. ;  Russell 
357,  369  (to  poor  families,  widows  v.  Kellett,  2  Sm.  &  Gif.  264;  Dent  v. 
and  orphans  and  persons  in  distress);  Allcroft,  30  Beav.  336;  Graham  v. 
Hunt  V.  Fowler,  121  111.  269,  277,  12  Paternoster,  31  Beav.  30. 

N.  E.  R.  33;  Phillips  v.  Harrow  (Iowa),  *  See  ante,  %%  71-82,  as  to  the  capac- 

61  N.  W.  R.  434;  Lepage  v.  McNam-  ity  of  municipal  corporations  as  dev- 

ara.  5  Iowa,  411  (holding  that  a  de-  isees. 
vise  to  poor  children  to  be  selected 


§  SIT.]  EULES    KEGULATIXG    CHARITABLE    GIFTS.  1209 

So  a  bequest  to  a  town  in  trust  to  '■'■  sni^^ly  fuel  to  tliejpoor^'^'^ 
or  to  ^^  save  the  jpoor  from  pauperism^^^  "^  or  for  the  benefit  of  the 
poor  generally,  no  specific  application  of  the  fund  being  men- 
tioned in  this  instance,  has  been  sustained.^ 

The  cases  which  uphold  the  validity  of  a  gift  to  a  municipal 
corporation  for  the  benefit  of  the  poor  assume  that  to  alleviate 
poverty,  to  relieve  the  suffering  of  those  who  have  but  little  of 
this  world's  goods,  and  to  aid  in  the  maintenance  and  support 
of  the  indigent  and  unfortunate  of  all  classes,  are  duties  which 
are  entirely  within  the  scope  of  the  powers  of  a  municipal  cor- 
poration and  germane  to  its  purpose.*  The  fact  that  the  money 
given  by  the  testator  incidentally  tends  to  relieve  the  rich  by 
lessening  the  burdens  of  taxation  can  never  be  urged  as  a  valid 
objection  to  such  a  bequest.^  Xor  does  the  indefiniteness  of  the 
class,  i.  e.,  the  poor,  named  as  beneficiaries  'impair  or  destroy 
the  validity  of  the  gift,  as  it  is  very  well  settled  that  gifts  to  a 
trustee  (and  even  where  no  trustee  is  named)  for  the  benefit  of 
the  poor  generally  are  valid  as  charitable  gifts.^  In  one  or  two 
states  the  courts  have  refused  to  sustain  a  gift  to  a  municipal 
corporation  for  the  benefit  of  the  poor  generally,  holding  that 
it  is  void  for  the  uncertainty  of  beneficiary.  In  reaching  this 
decision,  which  constitutes  an  exception  to  the  rule  of  laAv  which 
prevails  elsewhere,  the  supreme  court  of  Wisconsin  argued 
that  when  a  gift  to  a  class  vests  at  the  death  of  the  testator,  as 
was  the  case  in  this  instance,  it  is  the  primary  duty  of  the  court 
to  ascertain,  if  possible,  what  persons  constitute  the  class  at 
that  time.     In  other  words,  who  are  "  the  poor  "  at  the  death  of 

1  "VVebb  V.  Neal,  5  Allen  (Mass.),  575.  a  provision  for  the  poor,  are  germane 

2Dascomb  v.  Martin,  80  Me.  223,  to  the  powers  of  the  municipal  cor- 

232,  13  Atl.  R.  888.  poration,  and  a  bequest  for  such  pur- 

3  Hornberger    v.    Hornberger,    12  poses  may  be  accepted  by  a  city  to 

Heisk.  (Tenn.)  635;  Piper  v.  Moulton,  which  it  is  made.     Phillips  v.  Har- 

72  ]\re.  155,  159;  PhiUips  v.  Harrow  row  (Iowa),  CI  N.  W.  R.  434. 

(Iowa,  1897),  01  N.  W.  R  434;  Shel-  *  Ante,  §74. 

don  V.  Town  of  Stockbridge,  67  Vt.  "The  fact  that  a  gift  in  trust  for 

239,31   Atl.  R.  414;  "Wood  v.  Paine,  the  poor  of  a  town  adds  notliing  ta 

66  Fed.  R  807;  Trim  v.  Prightnian,  wliat  they  are  already  entitlt'tl  to  ro 

16H  Pa.  St.  395,  31  Atl.  K.  1071.     And  ceivo  from  the  town,  and  tiiat  the 

a  fotmdliog  asylum  for  the  pur|)oso  gift  in  olfect  tends  only  to  relieve  the 

of  relieving  unfortimate  women  and  tax|»ayers,  do  luit  invalidate  it.     In 

for  caring  for  their  offsjjring,  and  an  re  Strong's  Appeal  (Corui.),  37  Atl.  IL 

infirmary  for  those  unahle  to  pay  for  395. 

medif;al  att<indaiifio,  being  in  effect  "SeejISlfJ. 


1210  LAW    OF   WILLS.  [§  817. 

the  testator?  It  is  well  known,  says  the  court,  that  the  word 
^'  poor  "  has  several  meanings,  and  it  is  the  office  of  the  court 
to  ascertain,  if  possible,  which  of  these  meanings  was  in  the 
mind  of  the  testator  when,  he  framed  his  testament.  He  may 
have  employed  the  term  to  signify  absolute  j^aupers^  i.  e.,  those 
who  are  j?e?'?na7iefitli/  dependent  upon  alms  for  their  maintenance, 
and  who  are  supported  by  the  public  authorities  in  almshouses. 
Or  he  may  have  desired  to  contribute  to  the  support  of  those 
who,  though  equally  indigent  and  helpless,  are  maintained  in 
the  numerous  institutions  which  the  active  spirit  of  private 
benevolence  has  founded  throughout  the  land.  Besides  these 
two  classes  of  unfortunate  persons,  another,  perhaps  equally 
numerous,  may  be  mentioned,  composed  of  persons  who  are  just 
as  much  in  need,  but  who,  because  of  pride,  or  the  spirit  of 
sturdy  independence,  or  for  some  other  reason,  have  never  ap- 
plied for,  or  availed  themselves  of,  the  aid  offered  by  institu- 
tional charity.  A  fourth  and  the  most  numerous  class  coming 
within  the  scope  of  the  language  employed  is  composed  of 
those  estimable  persons  who,  equally  removed  from  indigency 
and  affluence,  spend  their  lives  in  a  constant  struggle  to  pro- 
cure a  livelihood.  By  their  toil  they  are  enabled  to  procure 
the  necessities  of  life,  but  not  to  enjoy  any  of  its  luxuries,  and 
few,  if  any,  of  its  comforts.  In  consequence  of  these  different 
meanings  which  attach  to  the  word,  it  is  impossible  for  a  court 
to  determine  to  which  of  these  several  classes  of  poor  persons,  if 
any,  the  testator  intended  the  gift  to  go,  or  whether  he  wished 
all  of  them  to  receive  some  benefit.^  In  view  of  these  consider- 
ations, it  would  appear  that  the  test  of  the  validity  of  a  gift  to 
a  municipal  corporation  for  the  benefit  of  the  poor  depends 
wliolh'  upon  the  meaning  of  the  word  as  it  is  used  by  the  tes- 
tator in  his  will.  If  he  meant  such  persons  as  the  municipal 
corporation  is  under  no  statutory  obligation  to  support,  the 
gift  might  be  invalid,  not  being  germane  to  the  powers  of  the 
municipal  corporation.  Most  of  the  cases  which  have  sustained 
the  validity  of  gifts  to  a  city  for  the  benefit  of  the  poor  have 
not  inquired  into  this  branch  of  the  question,  but  have  either 
assumed  that  the  testator  intended  his  Ijounty  to  go  in  aug- 
mentation of  the  funds  raised  by  taxation  for  the  care  of  persons 
comprised  within  the  first  of  the  four  classes  above  mentioned, 

1  In  re  Hoffen,  70  Wis,  523, 537, 528. 


§   SIS.]  EULES    KEGULATIXG    CUARITABLE    GIFTS.  1211 

or  have  ignored  an  inquiry  into  what  particular  class  of  poor 
he  did  mean.  In  the  state  of  Xe^y  York,  where  the  statut-e  of 
Elizabeth  is  not  in  force,  and  no  gift  to  a  corporation  is  valid 
unless  the  corporation  has  power  to  take  the  gift  for  a  purpose 
specified  in  its  charter  or  incorporating  statute,  a  gift  to  a  town, 
for  the  benefit  of  the  poor  has  been  declared  void  because  the 
testator  had  not  confined  its  application  to  that  class  of  poor 
persons  which  the  town  was  under  a  statutory  liability  to  sup- 
port. As  the  town  had  no  power  under  its  charter  to  take 
property  for  a  purpose  not  permitted  or  recognized  therein,  and 
as  it  was  clear  that  the  testator,  in  bequeathing  a  sum  of  money 
to  a  town  for  the  support  of  the  poor  of  the  town,  did  not  intend 
that  the  money  should  be  applied  exclusively  for  the  support  of 
such  persons  onl}"  as  would  come  within  the  statutor}"  defini- 
tion of  poor,  but  that  he  intended  to  provide  for  all  persons 
who,  because  of  their  poverty,  were  in  need  of  assistance,  the 
whole  bequest  was  void.^ 

§  818.  Gifts  to  orphan  asylums  and  for  the  benefit  of  or- 
phans and  widows. —  Gifts  for  orphans,  and  to  support  or  es- 
tablish asylums  in  which  orphans  may  be  reared  and  educated 
for  lives  of  usefulness,  are  universally  upheUl  as  proper  chari- 
table gifts.'-  The  word  "orphan,"  in  its  ordinary  acceptation, 
means  a  young  child  who  has  lost  hotli  its  parents  hy  death. 
But  the  courts  have,  in  construing  charitable  gifts  for  the 
benefit  of  orphans,  given  the  word  a  wider  meaning,  including 
under  it  half-orphans  as  well.'  But,  on  the  other  hand,  in  a 
recent  case  in  Wisconsin  it  was  held  that  a  gift  for  the  benefit 
of  Roman  Catholic  orphans  was  void  for  the  indefiniteness  of 
the  beneficiaries,  as  the  court  could  not  decide  whether  the  tes- 

iFosdick  V.  Hempsted,  12")  N.  Y.  Orphan    Home.  3   Busli  (Kj-.).   371; 

581,  26  N.  E.  R  801;  In  re  Botsford,  Hazeltine  v.  Vose.  80  Me.  374.  14  At  I. 

23  MLsc.  R.  388,  52  N.  Y.  S.  288.  R   733;    lilason    v.   Metiiodi.st    Kj.is. 

2  In  re  Pearson's  Estate  (Cal..  1897),  Church,  27  N.  J.  Eq.  47;  Baldwin  v. 

45  Pac.  RM45j;  (Juilfoyle  v.  Arthur,  Baldwin,   3   Halst.  (X.  J.    E(|.)   211; 

158  111.  600,  41   N.  E.  R   1009;  Com-  Sawtelle  v.  Witliaiii,  ^J!l  N.  W.  R.  72. 

missioners   v.    Rogers,   55  Ind.   297;  94  Wis.  412;  (iould  v.  Taylor  Orphan 

Phillips   V.Harrow   (Iowa,   1897).  61  Asylum,  46  Wis.  106.  50  N.  W.  R.  422; 

N.   W.   R.    434   ("foundling   asylum,  W.MxIrutr  v.  Marsh,  63  Conn.  125.  2(i 

with  the  siK^cial  view  and  purjiose  All.  R.  >-'Hi. 

of  relir-ving  unfortunate  females  and  ■' HeanLsley  v.  l'>rid;;;e|Mirt,  53  C^onii. 

firing  for  their  offspring  ");  .Muonr  V.  493;  Sixilian   v.  i'hilailelphia,  33  I'a, 

M<x;re,  4   Dana  (Ky.),  354;  Cromie  v.  .St.  1,  24-32. 


1213  LAAV   OF  ^VILLS.  [§  818. 

tator  intondod  to  include  cliildreri  who  had  been  deprived  of 
one  parent  only  or  not.^ 

The  care  and  healing  of  the  sick  are  duties  and  obligations 
of  our  common  humanity  which  are  sufliiciently  within  the 
meaning  of  the  term  "charitable"  to  justify  the  courts  in  up- 
holding gifts  to  found  and  to  sustain  hospitals,  dispensaries  and 
similar  institutions,  irrespective  of  the  operation  of  the  statute 
of  charities  in  which  they  are  recognized  and  defined  as  valid 
charitable  gifts.  Testamentary  gifts  to  such  institutions  are 
favorably  regarded  by  the  court,  and  they  will  be  sustained, 
though  no  trustee  may  have  been  named  in  the  will,  if  the 
court  is  able  to  carry  into  effect  the  intention  of  the  testator.^ 

The  question  may  arise,  "What  is  an  orphan  asj^lum  ?  in  con- 
struing a  gift  to  the  "  orphan  asylums  of  a  city,"  which  is  given 
in  general  terms.  In  California  it  has  been  held  that  a  chari- 
table organization  known  as  "  The  Ladies'  Protective  and  Re- 
lief Society,"  the  object  of  which,  according  to  its  charter,  is 
"  to  render  protection  and  assistance  to  sick  and  dependent 
women  and  children,"  and  which  maintained  a  home  for  the 
care  and  bringing  up  of  orphans,  half-orphans  and  abandoned 
children,  having  under  its  care,  on  an  average,  over  one  hun- 
dred and  fifty  children,  was  "an  orphan  asylum,"  and  was 
therefore  competent  to  take  a  legacy  given  to  the  orphan  asy- 
lums of  the  city  of  San  Francisco.^ 

A  testamentary  gift  for  the  benefit  of  jpoor  loidoics  gener- 
ally;* to  establish  an  asylum  for  widows;^  for  the  benefit  of 
the  widows  and  children  of  seamen;^  or  for  the  widows  and 

1  Heiss  V.  Murphy,  40  Wis.  290.  3  in  re  Pearson's  Estate  (Cal.,  1899), 

2  Inglis  V.  Sailors'  Snug  Harbor,  3  45  Pac.  R.  849.  But  a  reformatory 
Peters  (U.  S.),  99;  Hayden  v.  Con-  whose  inmates  are  wayward  chil- 
necticut  Hospital,  64  Conn.  320,  30  dren,  not  necessarily  orphans,  who 
Atl.  R  50  (to  maintain  free  beds  in  a  are  committed  by  the  police  magis- 
hospital);  American  Asylum  V.  Bank,  trates  or  sent  to  it  by  a  society  for 
4  Conn.  172  (deaf  and  dumb  asylum);  the  prevention  of  cruelty  to  children, 
"Woman's  Union  Missionary  Soc.  v.  cannot  take  under  such  a  bequest. 
Mead,  131  111.  33,  23  N.  E.  R.  603;  Mc-  In  re  Pearson's  Estate  (Cal.,  1899),  45 
Donald  v.  Massachusetts   Hospital,  Pac.  R.  849. 

120  Mass.  432;  Burrell  v.  Boardman,  ^De  Bruler  v.  Ferguson,   54  Ind. 

43  N,  Y.  254;  Ould  v.  Washington  549. 

Hospital,  5  Otto  (U.  S.),  303;  Phila-  5  Fink   t.  Fink,  12  La.  Ann.  301; 

delphia  v.  Elliott,  3  Rawle  (Pa.),  170;  Milne  v,  Milne,  17  La.  Ann.  4(5. 

Pelham  v.  Anderson,  2  Eden.  296,  1  ^  Powell     v.    Attorne3'-GeiieraI,    3 

Bro.  C.  C.  444;  Attorney-General  v.  Mer.  48. 

Kelly,  2  Beav.  575. 


§  819.]  EULES    EEGULATIXG    CHARITABLE    GIFTS.  1213 

orphans  of  the  members  of  a  Masonic  lodge,^  has  been  held 
a  valid  charitable  gift  and  within  the  purview  of  the  statute  of 
Elizabeth. 

§  819.  The  validity  of  testamentary  gifts  to  the  national 
or  the  state  government. —  Whether  a  gift  to  the  federal 
government,  or  to  the  government  of  a  state  commonwealth 
€0  nomine^  attempting  to  vest  the  legal  title  to  the  property  in 
it  directly,  and  not  to  trustees  for  the  benefit  of  the  govern- 
ment, is  valid,  depends  upon  the  express  language  of  the  statute 
law  as  it  exists  in  the  jurisdiction  in  which  the  land  is  situated. 
In  England  the  question  can  but  seldom  arise,  inasmuch  as  the 
king,  in  whom  the  title  to  the  land  which  is  devised  to  the 
government  would  vest,  is  a  natural  person,  and  hence  capable 
of  takino;  bv  devise  under  the  statute  of  wills.^  But  the  erov- 
ernment  of  the  United  States,  and  the  governments  of  the 
various  states  forming  the  Federal  Union,  are  neither  persons 
nor  corporations.  Hence  in  the  case  of  a  statute  providing 
that  lands  may  be  xie vised  to  every  person  capable  by  law  of 
holding  real  estate,  and  also  to  corporations  which  are,  either 
by  their  charter  or  by  the  general  statutory  law,  capable  of 
holding  lands  for  the  purposes  of  their  incorporation,  it  has 
been  held  that  a  devise  of  lands  to  the  United  States  is  void 
because  of  the  incapacity  of  the  devisee  to  take  the  legal  title.' 

A  gift  to  the  general  government,  for  the  purpose  of  paying 
off  the  national  debt,  or  to  enable  it  to  establish  a  museum  or 
other  scientific  institution,  or  for  any  other  charitable  and  pub- 
lic purpose,  would  certainly  be  valid  as  a  charitable  gift.  Such 
testamentary  provisions  have  been  repeatedly  sustained  as  legal 
by  the  English  courts.*  And  in  the  federal  courts,  as  in  the 
courts  of  some  of  the  states,  similar  gifts  to  the  government  of 

1  Ileiskell     v.     Lodge,    3     Pickle  vise."    2  N.  Y.  R.  S.,  §  3.     Tiio  corpo- 

(Tenn.),  0G8,  11  S.  W.  R.  SS;!;  Indian-  rations  roferred  to  in  this  statute  are 

apolis  V.  Grand  ISIaster,  2.j  Ind.  518.  those  only  which  are  created  by  or 

2, '54  Henry  VIII.,  c.  5.  under  the  laws  of  tliis  state.     White 

3  In  re  Fox,  52  N.  Y.  530,  534.    Tiio  v.  Howard,  46  N.  Y.  144.     Hence  a 

statute  in  New  York  is  as  follows:  devise  of  lands  in  New  York  to  a  for- 

••  Every  one  may  devise  Ins  lands  to  eign  corporation  is  void,  though  the 

every  person  capable  of  holding  real  corporation    is    eini)owered    by    ita 

estate,  but  no  devise  to  a  corporation  charter  to  hold  lands   in  the  state 

Hliall   be  valid,  unless  sucii  corpora-  when-  it  was  incorp(jnited. 

tion  Ikj  expressly  authoriziMl  by  its  *  Ni'wiand    v.  Attorncy-tii'Mcral,  3 

charter  or  by  statute  to  take  by  de-  Mcr.  (isl;  Nightingale  v.  tloulboiiin, 


12  U  LAW   OF   AVILLS.  [§  820. 

the  United  States  liave  been  confirmed.^  But  tlic  question  of 
the  capacity  of  the  government,  independently  of  statute,  to 
take  a  devise  or  a  bequest  is  quite  distinct  from  the  question  of 
the  validity  of  the  purpose  of  a  gift  to  the  government.  If 
the  gift  is  valid  as  a  charitable  gift  or  bequest,  and  if  its  pur- 
pose is  germane  to  the  scope  of  the  governmental  powers,  a 
court  of  equity  may  sustain  it  as  a  valid  charitable  gift;  and  if 
by  statute  or  for  any  reason  it  is  considered  that  the  govern- 
ment has  not  the  capacity  to  take  the  title  directly,  the  court 
may  appoint  a  trustee  in  whom  the  title  will  vest  and  who  may 
carry  into  effect  the  intention  of  the  testator.  The  state  or 
federal  government,  like  a  munici})al  corporation,  is  not  under 
any  obligation  to  accept  or  to  administer  a  testamentary  chari- 
table trust,  and  the  legislative  branch  of  the  government,  state 
or  national,  has  an  absolute  and  exclusive  power  to  reject  or 
accept  all  gifts  by  will.  The  adoption  by  the  legislature  of  a 
report  of  a  committee  recommending  that  the  resolution  ac- 
cepting a  bequest  be  not  passed  is  a  rejection  of  such  bequest. 
The  action  of  the  legislature  is  conclusive,  and  the  court  can- 
not inquire  by  means  of  parol  evidence  what  motives  prompted 
any  member  of  the  legislature  in  voting  to  refuse  the  bequest.- 
§  820.  Charitable  gifts  for  the  purpose  of  effecting  a 
change  in  existing  laws. —  Every  person  under  the  present 
laws,  securing  liberty  of  speech  and  the  freedom  of  the  press^ 
has  the  same  right  to  devote  his  property  to  the  advancement 
and  ^propagation  of  any  opinion  or  set  of  opinions,  either  relig- 
ious or  political,  which  are  not  vicious  or  immoral,  by  a  dispo- 
sition to  take  effect  upon  his  death,  as  he  may  do  during  his 
life-time  by  a  personal  expenditure  of  his  means.  In  either 
case,  if  the  scheme  for  the  dissemination  of  his  views  involves 
a  perpetuity,  it  is  invalid,  unless  the  purpose  of  the  views  which 
he  advocates  is  one  which  may  legitimately  be  regarded  as  pub- 
lic and  charitable  in  its  nature.  The  question  is,  Will  the  spread 
of  the  opinions  to  the  advancement  of  which  the  fund  is  to  be 
devoted  accomplish  or  tend  to  accomplish  a  purpose  which  is 
public,  and  at  the  same  time  charitable,  either  under  the  'stat- 

5  Hare,  484,  2  Phill.  594;  Ashton  v.  Dickson  v.  United  States,  125  Mass. 

Longdale,  4  De  Gex  &  Sm.  402, 15  Jur.  311,  314. 

868.  2  State  v.  Blake  (Conn.,  1897),  36  AtL 

1  United  States  v.  Fox,  94  U.  S.  315;  R.  1019. 


§  820.]  KULES    REGULATING    CHAEITABLE    GIFTS.  1215 

ute  of  Elizabeth,  or  according  to  the  rules  of  law  which  may  be 
prevalent  in  the  jurisdiction  in  which  the  trust  is  to  be  admin- 
istered? Keepins:  these  considerations  in  view,  we  must  con- 
sider how  far  and  in  what  manner  a  testamentary  gift  for  the 
purpose  of  effecting  a  change  in  existing  laws  is  valid  as  a  char- 
itable gift.  It  is  undeniable  that  the  mere  purpose  of  over- 
throwing or  of  altering  existing  laws^?^'/'  se  is  not  recognized  as 
a  valid  charitable  use,  aside  from  any  iniriiose  useful  or  heneficiaZ 
to  society  which  may  he  accom;plished  hy  the  change  in  the  laws. 

But,  on  the  other  hand,  why  should  a  gift  of  property  to  be 
devoted  to  the  working  out  of  a  purpose  which,  like  the  aboli- 
tion of  slavery  or  the  suppression  of  the  manufacture  and  sale 
of  intoxicating  drink,  may  admittedly  be  of  great  benefit  to  so- 
ciety, be  invalidated  because  the  propagation  of  the  opinions 
on  which  it  is  based  is  in  opposition  to  some  rule  of  the  munici- 
pal law,  and  the  adoption  of  the  reform  would  ultimately  tend 
to  bring  about  a  change  in  the  law  ?  Liberty  of  the  press  and 
liberty  of  speech,  freedom  to  contract  and  freedom  to  worship, 
and  all  the  rights  and  privileges  which  men  now  enjoy  as  sub- 
jects or  citizens  of  the  commonwealth,  are  the  outcome  of 
changes  in  pre-existing  laws. 

Hence  it  is  safe  to  say  that  gifts  in  trust  for  the  purpose  of 
bringing  about  changes  in  existing  conditions,  and  for  the  pur- 
poses of  social  improvement,  would  be  sustained,  though  they 
might  involve  a  change  in  existing  laws,  if  the  change  is  to  be 
brought  about  by  legitimate  means,  as  by  appropriate  legisla- 
tion, the  employment  of  argument  and  persuasion,  and  other 
methods  not  involving  any  disturbance  of  the  public  peace. 
Thus,  a  devise  to  be  applied  to  promote  the  adoption  of  legisla- 
tion totaHy  prohibiting  the  manufacture  and  sale  of  intoxicat- 
ing licpiors  to  be  used  as  a  beverage,  and  to  create  a  public 
sentiment  in  favor  of  such  legislation,  is  valid,  being  in  nowise 
contrar}'  to  public  policy,  though  it  is  intended  to  bring  about 
a  most  radical  change  in  the  law,  and  one  which  will  without 
douht  result  in  a  vast  amount  of  injury  to  certain  classes  of 
vostcKl  interests.^  So,  too,  a  testamentary  gift  for  the  purpose 
of  circulating  the  works  of  Henry  (ieorgc,  in  which  the  private 
ownership  of  land  and  the  laws  securing  such  ownership  are 
(ienfjimced  as  a  system  of  of^aiii/id  roldici-y.  and  their  aboii- 

1  Farewell  v.  Fuiewell,  L",'  Out.  R.  573. 


1216  LAW    OF   WILLS.  [§820. 

tion  by  legal  and  peaceable  means,  but  without  remunerating 
the  present  owners,  is  advocated,  has  been  held  a  valid  chari- 
table gift.' 

On  the  other  hand,  a  bequest  to  trustees  "  to  secure  the  pas- 
sage of  laws  granting  women,  whether  married  or  unmarried, 
the  right  to  vote,  hold  office  and  .  .  .  all  civil  rights  en- 
joyed by  men,"  was  held  not  valid  as  a  charitable  trust.-  But  a 
bequest  to  trustees,  wliicli  is  to  be  used  for  "  the  attainment  of 
women's  suffrage  in  the  United  States,"  has  recently  been  held 
in  Illinois  to  violate  no  rule  of  public  policy  or  of  law.  The 
purpose  of  the  bequest  is  consistent  with  a  sound  public  policy, 
irrespective  of  the  fact  that  a  change  in  existing  laws  is  con- 
templated thereby.  JSTor  is  the  bequest  void  for  the  indefinite- 
ness  of  the  beneficiaries,  as  the  heirs  of  the  testator,  or  any 
person  interested  in  the  subject  of  women's  suffrage,  could  ob- 
tain, by  the  interposition  of  a  court  of  equity,  an  enforcement 
of  the  trust.  So  far  as  the  invaliditv  of  a  charitable  trust  in- 
tended to  effect  a  change  in  the  constitution  of  a  state  is  con- 
cerned, this  case  held  that  the  advocacy  of  a  change  in  the 
constitution,  to  be  effected  in  a  proper  and  legal  manner,  i.  <?., 
in  the  mode  provided  by  the  instrument  itself,  is  not  against 
public  policy,  and  a  bequest  for  such  a  purpose  is  valid  as  a 

1  George  v.  Brad  dock,  45  N.  J.  Eq.  declare  that  such  an  endeavor  is  op- 
757,  14  Am.  St.  R.  754,  reversing  44  posed  to  the  lavr,  for  it  is  simply  a 
N.  J.  Eq.  124,  14  Atl.  R.  108.  "I  can-  proposition  to  alter  the  law,  accord- 
not  perceive  for  what  reason  it  is  in-  ing  to  the  law." 

compatible  with  judicial  position  to  2  Jackson    v.    Phillips,    14    Allen 

aid,  if  invested  with  power,  in  the  (Mass.),   559.     "This   bequest    .    .    . 

circulation  of  the  works  of  a  learned  aims    directly    and    exclusively    to 

and  ingenious  man,  putting  under  ex-  change  the  laws,  and  its  object  can- 

amination  and  discussion  any  part  not  be  accomplished  without  chang. 

of  the  legal  system.   It  would  seem  to  ing  the  constitution  also.     Whether 

me  that    ...     I  was  called  upon  such  an  alteration  of  the  existing 

to  discard,  the  use  of  means  in  the  laws  and  frame  of  government  would 

development  of  law  which,  in  every  be  wise  and  desirable  is  a  question 

other  science,  are  regarded  as  abso-  upon  which  we  cannot,  sitting  in  a 

lute  essentials.    .    .    .    What  these  judicial  capacity,   properly  express 

writings  are  calculated  and  were  in-  any  opinion.     Our  duty  is  limited  to 

tended  to  effect  is  to  cause  the  repeal,  expounding  the  laws  as  they  stand, 

in  a  legitimate  mode,  of  the  laws  at  and  those  laws  do  not  recognize  the 

present  regulating  the  title  to  laud  pm'poseof  overthrowing  or  changing 

•and  the  substitution  of  a  different  them  in  whole  or  in  part  as  a  charita- 

system.     It  would  seem  to  be  quite  ble  use." 
out  of  the  question  for  this  court  to 


§  821.]  EULES    KEGULATING    CHARITABLE    GIFTS.  1217 

charitable  gif t.^  A  gift  towards  the  political  restoration  of  the 
Jews  to  Jerusalem  and  their  native  land  was  held  invalid  in 
England  as  tending  to  create  a  revolution  in  a  friendly  coun- 
try.^ And  in  England  a  trust  to  apply  income  to  the  circula- 
tion of  books  which  should  teach  the  doctrine  of  the  absolute 
and  inalienable  supremacy  of  the  pope  in  ecclesiastical  affairs, 
with  power  in  the  trustee  to  establish  a  professorship  in  any 
college  which  would  teach  the  principles  laid  down  in  the 
books,  being  against  the  policy  of  the  countr}^,  is  invalid.' 

§  8'21,  Gifts  for  general  benevolence  or  benevolent  pur- 
poses,—  Legacies  are  often  given  to  trustees  to  distribute  in 
their  discretion  for  '•'''benevolent purposes^''  or  "for  the  relief  of 
suffering^''  or  for  "  the  promotion  of  the  moral  and  social  wel- 
fare of  the  'people^''  and  the  question  arises  whether  they  are 
valid  charitable  gifts.  The  word  "  benevolent "  in  itself  is 
very  much  broader  in  its  meaning  than  the  word  "charitable" 
as  the  latter  term  is  employed  in  the  law.  To  advance  benev- 
olent purposes,  or  to  promote  the  general  welfare,  includes  acts 
which  are  not  only  charitable  in  themselves  but  which  are  a 
great  deal  more.  Actions  dictated  by  kindness,  good  nature, 
or  good  will,  or  by  a  disposition  to  do  good  generally,  but 
which  have  no  relation  to  the  promotion  of  any  of  the  charita- 
ble purposes  which  are  enumerated  in  the  statute  of  Elizabeth, 
or  which  are  recognized  by  the  law,  such  as  the  promotion  of 
education,  learning  or  religion,  the  relief  of  the  poor,  sick, 
aflB.icted,  etc.,  are  comprised  under  the  term  "  benevolent." 

Gifts  for  benevolent  or  other  vaguely  described  purposes 
have  frequently  been  held  invalid.  Thus,  a  gift  in  trust "  t<olely 
for  'benevolent  purposes^''  ^  or  to  be  used  "purely  and  solely  for 
citaritahle  purposes,  for  the  greatest  relief  of  hitman  suffering^ 
and  for  the  good  of  the  greatest  mirnber^''  *  or  to  be  used  "  for 
such  benevolent  purposes  as  the  executors  in  their  integrity  and 
discretion  shall  unanimously  agree  upon,"  ^  or  "  for  one  or  more 

1  Garrison  V.  Little,  75  111.  A  pp.  402,  consistent  with  our  amicable  rela- 

'-^  Haberslion  v.  Vardon,  4  De  G.  Sc  tions  with  the  Sublime  Porte." 

Sm.  407,  4(W,  7  Eng.  L.  &  Eq.  22S,  15        SThemniinness  v.  De  Bonneval,  5 

Jur.  901.     The  court  s;ii(l:  "Jews  at  Russ.  2.sy  (IS'JS). 

prewiut  may  reside  in  Jerusalem;  and        <  Chamiicrlain  v.  Stearns,  111  Mass. 

if  the  acfiuisition  of  jK)litical  i»f>\ver  207,  209. 

Iiy  them   was  intended,  tlie  i)romo-        *  Everett  v.  Carr,  59  Me.  ."{25,  335. 

tion  of  such  an  object  would  not  be        "James  v.  Allen.  ;J  Mer.  17. 


12 IS  LAW    OF    WILLS.  [§  821. 

l)urposos,  c/iiiritahle  or  2>/ii/f(>it//r<>j>ie,'"  ^  ^^  ^or  sucli  henevolcnt, 
charitable  and  religious  institutions  as  the  executors  may  think 
proper,'"- or  "for  the  promotion  of  the  religious,  W(;;r//5  and 
social  welfare  of  the  people  in  any  locality,"  ^  or  '^  for  such  benev- 
olent, charitable  and  religious  purjyoses  as  the  executors  may 
think  advantageous,"  *  has  been  held  invalid  as  a  charitable 
gift,  being  void  for  uncertainty  as  to  the  beneficiaries,  and  for 
the  further  reason  that  the  ex^va^sQCi  j^urjwse  of  the  gift  does 
not  come  under  the  definition  of  a  jndflic  cJiaritij,  as  that  word 
is  employed  in  its  strict  legal  and  technical  sense.'' 

The  meaning  of  the  word '' benevolent " or  "philanthropic," 
or  of  any  similar  vague  term,  may  be  restricted  by  the  lan- 
guage of  the  context  if  it  is  associated  with  other  words  which 
possess  a  technical  meaning,  and  which  show  that  the  testator 
intends  to  dispose  of  his  property  for  charitable  purposes  in 
the  technical  sense  of  the  term.  Thus,  a  gift  in  trust  to  be 
expended  by  the  trustees  for  charitahle  and  henevolcnt  purposes 
has  been  held  valid,"  as  for  a  public  charity,  and  the  same  rul- 
ing was  had  where  the  gift  was  in  aid  of  objects  and  purposes 
of  "  benevolence  and  charity^  public  or  private^''  or  for  the  edu- 
cation of  deserving  youths.^  In  all  cases  where  the  word 
"  benevolent "  is  employed  in  connection  and  association  with 
the  technical  terms  proper  to  the  creation  of  charitable  trusts, 
it  will  have  a  secondary  and  restricted  meaning,  and  may  be 
construed  as  co-extensive  and  synonymous  with  the  word 
"charitable."^ 

iln  re  MacDiiff  v.  MacDuff,  (1896)  religious;  it  would  include  all  gifts 

2  Ch.  451.  prompted  by  good   will  or    kindly 

2Norris  v.  Thompson,  19  N.  J.  Eq.  feeling  toward  the  recipient,  whether 

307,  20  N.  J.  Eq.  489.  an  object  of  charity  or  not.     The 

!i  Livesey  V.  Jones  (N.  J.  Ch.),  35  Atl.  natural  and  usual   meaning  of  the 

R.  10C4.  word  would  so  extend  it.     It  has  no 

4  Williams  v.  Kershaw,  5  L.  J.  (N.  legal  meaning.     The  word  'charita- 

S.)  Ch.  84,  5  CI.  &  Fin.  111.  ble'  has  acquired  a  settled  limited 

•'  "  It  is  conceded  that,  by  the  Eng-  meaning  in  law   which  confines  it 

lish  decisions,  the  words  '  cliaritable  within  known  limits."    Remarks  of 

and  religious '  are  sufficiently  defi-  the  court  in  Norris  v.  Thompson,  19 

nite,  and  it  is  contended  tliat,  by  the  N.  J.  Eq.  307. 

same  authorities,  tlie  word  •benevo-  •'Fox  v.  Gibbs,  86  Me.  87,  29  Atl.  R 

lent '  is  not,  and  that  a  gift  to  benevo-  940;  People  v.  Powers,  8  Misc.  R.  628, 

lent  objects  or  for  benevolent  institu-  29  N.  Y.  Supp.  950. 

tions  is  void.    The  word 'benevolent'.  "Saltonstall  v.   Sanders,  10  Allen 

is  certainly  more  indefinite  and  of  (Mass.).  440. 

far  wider  range  than  charitable  or  *  Rotch  v.  Emferson,  105  Mass.  431, 


§  822.] 


EULES    KEGULATIXG    CHARITABLE    GIFTS. 


1219 


§  S2'2.  Miscellaneous  cases  of  charitable  gifts. —  Many  in- 
stances occur  of  gifts  which  have  been  held  valid  as  charitable 
which  cannot  be  strictly  classified  under  any  one  of  the  pre- 
ceding heads.  Thus,  a  bequest  to  trustees  to  be  employed  in 
suppressing  the  sale,  manufacture  and  use  of  intoxicating  liq- 
uors;^ for  the  purpose  of  circulating  the  writings  of  Henry 
George  dealing  with  economic  questions ;  -  for  the  distribution 
of  good  books  among  poor  people;^  to  promote  the  cause  of 
peace  throughout  the  world;*  for  the  benefit  of  native-born 
maiden  ladies;'  to  purchase  land  and  to  erect  model  buildings 
thereon  for  rent  so  as  to  improve  the  moral,  physical  and  intel- 
lectual condition  of  the  youth  of  a  city;^  to  aid  apprentices  in 
setting  themselves  up  in  business;'  for  planting  shade  trees;* 
to  construct  children's  play  grounds;^  to  establish  a  protectory 
for  boys;^"  to  maintain  a  life  boat,'^  a  botanical  garden,^^  or  a 
museum  at  Shakespear's  house  at  Stratford-on-Avon,"  or  an 
institution  for  the  investigation  and  cure  of  the  diseases  of  birds 
and  quadrupeds  which  are  useful  to  man,  and  to  support  a 
lecturer  on  the  same;"  to  assist  in  sustaining  a  volunteer  regi- 
ment in  England  ;^^  for  the  benefit  of  the  British  ]\Iuseum;^*'  or 
for  the  Eoyal  Geographical  Society;  ^'  for  a  law  library ;  ^^  for  an 


434;  Chamberlain  v.  Stearns,  111 
Mass.  267,  208:  Suter  v.  Hilliard,  132 
Mas.s.  413:  De  Camp  v.  Dobbins,  31 
X.J.  Eq.  GOj;  Adye  v.  Smitli,  44  Conn. 
60;  In  re  Jarman,  L.  R.  8  Ch.  D.  .184; 
Hill  V.  Burns.  2  W.  «&  S.  80;  Crichton 
V.  Griersoii.  3  Bligh  (N.  R),  424,  3 
Wils.  &  S.  329,  341;  Heath  v.  Chap- 
man, 2  Drew.  417;  Ewen  v.  Banner- 
man,  2  Dow  &  CI.  74.  101,  4  Wilson 
&  Shaw.  346:  Millar  v.  Rowan,  5  CL 
&  Fin.  99:  Kendall  v.  Gran;;er,  5 
Beav.  300:  Morice  v.  Bishop  ol'  Dur- 
liani.  9  V«is.  399. 

1  Haines  v.  Allen.  78  Ind.  100,  102. 

2  George  v.  Braddock,  4.'5  N.  J.  Eij. 
757,  18  Atl.  R.  H>i\. 

'Pickering  v.  Shotwell.  10  Pa.  St. 
23. 

♦Tai)pan  v.  Deblois,  ir,  Me.  122. 

» Fellows  V.  Miner,  119  Mass.  511, 
545. 


6  Webster  v.  Wiggin  (R.  I.),  31  AtL 
R.  824. 

"  Franklin's  Adni'r  v.  City  of  Phila- 
delphia, 13  Pa.  Co.  Ct.  R.  241,  2  Pa. 
Dist.  Co.  R.  435. 

«Cresson"s  Appeal,  30  Pa.  St.  437. 

9  In  re  Smith.  5  Pa.  Dig.  Co.  R  327. 

10  Duggan  v.  Slocum,  83  Fed.  R  244. 

11  Johnson  v.  Swan,  3  Mad.  457. 
i-Townley  v.  Bedwell,  6  Ves.  194- 
i^Tliompson    v.   Shakespear,    1   De 

Ge.x,  F.  &  J.  399. 

•*  London  University  v.  Yarrow,  23 
Beav.  59.  1  De  Ge.x.  G.  &  J.  72. 

'■•Alt  V.  Stratheden,  8  Reports,  515, 
(1894)  3  Cii.  265;  Ciianiljerlayne  v. 
Brockett.  L.  R.  8  Ch.  2()(i. 

'•' Britisii  Maseuni  v.  White,  2  Sim. 
&  St.  59.5. 

1'  Beaumont  v.  Oliviera,  L.  U.  (i  Va{. 
534. 

»» Craig  V.  Lilly  (Pa.,  1^87),  9  .Ml.  R 
171. 


1220  LAW   OF   WILLS.  [§  822. 

"art  institute,"  the  income  to  be  distributed  in  annual  prizes  for 
the  encourag-einent  of  art;'  for  the  purpose  of  giving  prizes  for 
the  advancement  of  medical  science,  and  to  distribute  treatises;^ 
for  the  benefit  of  soldiers  and  sailors  who  served  in  the  War  of 
the  Eebellion,  their  widows  and  orphans;*  for  a  Sunday  school 
library ;  *  a  gift  for  deserving  literary  men  who  have  been  un- 
successful;* for  sheltering  homeless  people;*  to  establish  a  fire 
engine;^  for  the  relief  of  disabled  firemen;^  for  the  relief  of 
emigrants  and  travelers;^  for  the  benefit  of  the  members  of  a 
Masonic  lodge;'''  for  the  benefit  of  a  Shaker  community;"  for 
the  removal  of  slaves  to  Liberia; '-  to  create  a  public  sentiment 
that  will  put  an  end  to  African  slavery  ;'*  to  protect  American 
citizens  of  African  descent  in  the  enjoyment  of  their  civil  rights 
as  provided  for  in  the  federal  constitution  and  by  the  various 
acts  of  congress;  '^  to  furnish  prizes  for  essays;  '*  or  for  the  most 
important  discovery  in  light  or  heat  made  in  America ;  '*  and 
for  the  diffusion  of  useful  knowledge  and  instruction  among 
clubs  and  meetings  of  the  workingmen ;  '^  to  establish  a  home 
for  aged  women,'^  or  a  home  for  needy  single  women  and  poor 
widows;  '^  or  to  pay  money  to  a  certain  number  of  persons  over 
fifty  years  of  age  who  attend  a  certain  chapel,-"  has  been  held 
valid. 

1  Almy  V.  Joues,  17  R.  T.  2G.1.  21  Atl.  Eq.  107:  Cruse  v.  Axtel.  50  Ind.  49; 
R  616.  Duke  v.  Fuller,  9  N  H.  536. 

2  Palmer  v.  President,  etc.  of  the  "  Gass  v.  Wilhite,  2  Dana  (Ky.),  170. 
Union  Bank,  17  R.  L  267,  2-4  AtL  R.  ^^  Wade  v.  American  Colonization 
109.  Soc,  7  Sm.  &  M.  (Miss.)  695;  Walker 

3  Holmes  v.  Coates,  159  Mass.  226,  v.  Walker,  24  Ga.  420. 

34  N.  E.  R.  190.  13  Attorney-General  v.  Garrison,  101 

^Fairbanks  v.   Lamson,   99  Mass.  Mass.   227;    Jackson  v.   Phillips,   14 

533;  Conklin  v.  Davis,  63  Conn.  877,  Allen  (Mass.),  550. 

28  Atl.  R.  537.  >*  In  re  Lewis'  Estate,  152  Pa.  St. 

5  Thompson  v.  Thompson,  1   Coll.  477,  31  W.  N.  C.  460,  25  Atl.  R.  878, 11 

295.  Pa.  Co.  Ct.  R.  561. 

« In  re  Croxall's  Estate  (Pa.   St.,  ^^  Farrer  v.  St.  Catherine's  College, 

1896),  29  Atl.  R.  759.  L.  R.  16  Eq.  19. 

7  Bethlehem  v.  Perseverance  Co.,  i*  Amherst  Academy  v.  Harvard 
81  Pa.  St.  445;  Thomas  v.  Ellmaker,  College,  12  Gray  (Mass.),  582. 

1  Pars.  Cas.  (Pa.)  98.  i^  Sweeney  v.  Sampson,  5  Ind.  465. 

8  Potts  V.  Philadelphia  Society,  8  J*  Hazeltine  v.  Vose,  80  Me.  374,  14 
Phila.  R  326;  In  re  Jeanes,  3  Pa.  Dist.     Atl,  R  733. 

Ct.  R.  31 4,  34  W.  N.  C.  190.  i^Swasey  v.   American    Bible    So- 

9  Chambers  v.  St.  Louis,  29  Mo.  543.     ciety,  57  3Ie.  523. 

lOMcBride  v.  Elmer,  2  Halst.  (N.  J.)       20  in  re  Wall,  42  Ch.  510.    In  this 


§  823.]  EULES    REGULATING   CHARITABLE    GIFTS.  1221 

§  823.  Testamentary  provisions  for  the  erection  and  care 
of  monuments. —  A  dedication  of  land  for  the  maintenance  of 
a  cliurcli-yard  or  burial  ground  in  connection  with  a  church  or 
religious  society,  or  as  a  public  burying  ground,  or  even  for  a 
burial  ground  for  persons  of  a  particular  race  or  class,  or  who 
are  resident  in  a  particular  neighborhood,  is  a  dedication  of  the 
land  to  a  public  and  charitable  use.^  Hence  a  testamentary 
disposition  either  of  land,  or  money  for  the  purchase  of  land, 
for  the  establishment  or  the  support  of  a  public  cemetery  in 
which  all  persons,  upon  compliance  with  the  conditions  pre- 
scribed, shall  have  the  right  of  interment,  is  valid  as  for  a  pub- 
lic and  charitable  purpose.- 

A  very  different  question  arises,  and  one  which  is  not  alto- 
gether easy  of  proper  solution,  in  the  case  of  a  gift  in  per- 
petuity to  provide  for  the  purchase  of  a  burial  plot  for  the 
iedator  alone,  or  for  the  permanent  care  of  one  already  owned 
Jy  him,  or  for  the  purchase  and  care  of  -di  family  hurial  plot, 
or  for  the  erection  of  a  monument  to  the  memory  of  the  testator. 
The  gift  for  a  j^uUlc  cemetery  is  one  that  is  calculated  to  con- 
fer a  benefit  upon  the  whole  public  or  upon  a  certain  large 
though  indefinite  class  of  the  public.  Every  characteristic  of 
a  public  charity  is  present.  It  is  intended  to  supply  a  public 
necessity  and  to  aid  in  preserving  the  public  health  by  furnishing 
a  proper  and  convenient  place  of  sepulture  for  the  dead.  And 
as  the  interment  of  the  departed  with  appropriate  ceremonies 

case  the  gift  was  sustained  as  a  valid  243;  Sheldon  v.  Stockbridge,  67  Vt. 

charitable   bequest  to   the   '"aged"  299;  Knox  v.  Knox,  9  W.  Va,  124; 

under  the  statute  of  Elizabeth.  Webster  v.  Morris,  66  Wis.  306,  380; 

J  Hopkins  v.  Griuisliaw,  16:")  U.  S.  Naumann  v.  Weidinann,  182  Pa.  St. 

342,  353;  Beatty  v.  Kurtz.   2  Peters  263,  267,  37  Atl.  R.  863:  and  see  cases 

(U.  S.),  566,  583;  Cincinnati  v.  Wliite,  in  last  note.     A  statute  perniitting 

0   Peters  {U.  S.),  431,  436;  Jones  v.  a  ceinetery  association  to  take  proj)- 

Habershani,  3  Woods.   443,  470,  107  erty  bequeathed  to   it   in  trust  for 

U.  S.  174,   183,  184;  Dexter  v,  Gard-  tlie  improvement  of  the  cemetery, 

ner,   7   Allen   (Mass.),   243.   247;    Di-  or  tliereiuiir  and  preservation  of  any 

venger    v.    Geary,    113  Ind.   106,   14  monument  or  gravestone,  etc..  in  it, 

N.  E.  R.  903;  In  re  Vauglian,  33  Cli.  is    a    valid    e.xercise    of    legislative 

Div.  187.  IKiwer  and  permits  a  perpetual  trust, 

-  Bronson  V.  Strouse,  57  Conn.  360,  to  that  extent  annulling  tiie  rule 
17  Atl.  R  099  ((ien.  St..  §  2951);  against  |M'rpetuities.  liurtson  v.  El- 
Chatham  v.  Brainard,  11  Conn.  00;  den,  50  N,  J.  Eq.  522,  525,  20  Atl.  R 
liaptist  ('hun-h  v.  Presbyterian  561;  Moore's  Ex'r  v.  Mooro,  00  N.  J. 
Churfh.  \H  H.  .M<m.  (Ky.)  6.;5,  611;  Eq.  551,  561. 
Dexter  v.  Gardner,  7  Allen  (Ma.ss.), 


1222  LAW    OF    WILLS.  [§  823. 

constitutes  a  part  of  every  description  of  religious  faith  prac- 
ticed in  civilized  communities,  and  is  one  of  the  most  promi- 
nent religious  rites  which  is  adhered  to  in  civilized  lands,  it  may 
be  said,  with  reason,  that  the  supplying  and  dedication  of  pub- 
lic cemeteries  and  burial  grounds  are  proper  examples  of  relig- 
ious or  pious  uses.  But  a  gift  for  ?i private  burial  ground  for  the 
exclusive  use  of  the  family  of  the  testator,  or  a  provision  for  a 
jyrivate  grave  or  a  private  family  plot,  stands  upon  a  wholly  dif- 
ferent footing.  The  cases  are  irreconcilably  inharmonious  as 
to  the  legality  of  such  gifts.  The  English  decisions,  while  ad- 
mitting the  validity  of  bequests  in  perpetuity  for  public  ceme- 
teries, deny  the  validity  of  such  gifts  for  private  burying 
grounds  or  for  private  monuments,  reasoning  that  a  trust  to 
build  a  private  monument  or  to  keep  one  in  repair  is  not  a 
trust  for  a  public  charitable  purpose,  but  solely  for  some  pri- 
vate purpose  of  the  testator.  Hence  a  gift  of  money  in  trust 
to  provide  a  tomb  for  the  testator,  to  purchase  a  jyrivate  burial 
plot  for  him  or  for  his  family,  or  to  keep  and  maintain  his 
monument  or  his  tomb  in  good  condition,  where  the  trust  is 
to  endure  for  a  longer  period  than  is  permitted  by  the  rule  of 
perpetuities,  is  invalid.  The  building  and  repair  of  a  private 
monument  are  matters  strictly  individual  and  personal  to  the 
deceased  or  to  the  surviving  members  of  his  family,  which  in 
no  way  confer  any  benefit  upon  the  public  generally.  The}^ 
cannot  be  regarded  as  a  valid  charitable  purpose.^ 

In  the  United  States  the  decisions  seem  to  favor  the  validity 
of  perpetual  trusts  for  the  purchase  or  the  maintenance  and 
repair  of  private  monuments  and  burial  plots,  and  for  the  erec- 
tion of  private  monuments.  Such  trusts  have  been  frequently 
sustained.-     A  direction  to  an  executor  to  purchase  a  grave- 

1  Adnam    v.    Cole,    6    Beav.    353 ;  585 ;  In  re  Rigley's  Trusts,  36  L.  J. 

Durour  v.  Motteux,  1  Ves.  Sen.  320;  Ch.  147;  In  re  Burkett,  L.  R.  9  Ch. 

Xoe  V.   Pitcher,   6  Taunt.  359,  370;  D.  576;  In  re  Williams  (1877),  L.  R. 

Lloyd  V.  Lloyd,  2  Sim.  (N.  S.)  255,  264;  5  Ch.  D.  735:  Fisk  v.  Attorney-Gen- 

Rickard   v.    Robson,   31    Beav.    244;  eral,  L.  R.  4  Eq.  521;  In  re  Tyler,  3 

Fowler  v.  Fowler,  33  Beav.  616,  10  Ch.   252   (1891);  Bates  v.  Bates,   134 

Jur.    (N.  S.)  648;  Came  v.   Long,  8  Mass.  110,  114 

W.  R.  570;  Dawson  v.  Small,  18  L.  R.  2  Johnson  v.  Holifield,  79  Ala.  423; 

Eq.  114;  Mellick  v.  Asylum,  Jacob,  Coit    v.    Comstock,    51    Conn.    352; 

180;   Willis  v.    Brown,    2  Jur.   987;  Swasey  v.  American  Bible  Society, 

Hunter  v.  Bullock,  L.  R.  14  Eq.  45;  57  Me.  523;  Piper  v.  Moulton,  72  Me. 

Hoare  v.  Osborne,  L.  R  1  Eq.  583,  155,  161;  Needles  v.  Martin,  33  Md. 


§  823.] 


EULES    KEGULATIXG    CHARITABLE    GIFTS. 


1223 


stone  or  a  monument  for  the  testator  alone ^  and  to  erect  the 
same,  but  creating  no  trusty  has  been  sustained  as  valid,  being 
properly  in  the  line  of  his  duty  in  defraying  the  funeral  ex- 
penses; and  the  testator  may,  if  he  choose,  devote  his  whole 
<3state  to  this  purpose.^  The  money  is  paid  out  and  out,  and  as 
no  trust  is  created  no  suspension  of  alienation  can  take  place. 
But  a  direction  that  an  executor  shall  invest  an  ample  sum  of 
money,  the  income  of  which  shall  be  sufficient  to  keep  the  plot 
of  the  testator  in  repair,  authorizes  the  investment  of  a  sum  of 
money  reasonably  capable  to  accomplish  the  purpose.- 


609;  Bates  v.  Bates,  134  Mass.  110, 
114;  Gafney  v.  Kennisou.  64  N.  H. 
3o4,  10  Atl.  R.  TOG:  Bell  v.  Brigfrs,  63 
N.  H.  592;  Joy  v.  Fesler  (N.  H.),  29 
Atl.  R  448;  In  re  Fislier,  2  Con.  Sur. 
(N.  Y.)  7.5;  Knox  v.  Knox,  9  W.  Va. 
124;  Dexter  v.  Gardner,  7  Allen 
(Mass.),  243;  Giles  v.  Boston  Societj^ 
10  Allen  (Mas&),  355,  357;  Green  v. 
Hogan,  153  Mass.  463,  466,  27  N.  E.  R. 
413  (St.  Mass.,  1884,  cli.  186;  ch.  82, 
sees.  6-8,  17,  etc.) ;  In  re  Boardman's 
Will,  20  N.  Y.  Supp.  60  (holding  that 
such  a  gift  is  not  void  because  there 
is  no  ascertained  beneficiarj'),  over- 
ruling 8  N.  Y.  Supp.  10.  See  also 
Naumann  v.  Weidnian,  182  Pa.  St. 
263,37  Atl.  R.  863;  In  re  Tiernay's 
Estate,  2  Pa.  Dist.  Ct.  R.  524  (Act 
May  26,  1891,  P.  L.,  p.  119).  Gifts  to 
a  trustee  or  an  executor  for  the  pur- 
pose of  building  a  monument  for  the 
testator,  or  for  some  other  person,  or 
for  the  pur[)Ose  of  caring  for  his 
grave,  are  not  valid  if  tliey  oflFend 
tlie  rule  against  perpetuities,  for  tlie 
purpose  of  such  gifts  is  not  public 
cliarity.  They  are  not  per  ae  illegal, 
and  will  l)e  sustained  if  they  are  to 
be  exf)ended  within  a  life  or  lives  in 
being,  thougli  for  a  private  purjKtse. 
Lloyd  v.  Lloyd.  10  Eng.  L  &  Ecj.  139; 
PifK-r  V.  Moulton,  72  Me.  15.5.  160; 
Ilornlwrger  v.  Hornl»erger.  12  Ileislc. 
(Teiin.,  1H74).  635,  637;  Sli.Tinan  v. 
Baker  (li.  L,  1894),  40  AtL  \L  li. 


iFairman's  Case,  30  Conn.  205; 
Ford  V.  Ford.  91  Ky.  572:  In  re  Board- 
man.  20  N.  Y.  S.  60,  61;  Wood  v.  Van- 
denburgh.  6  Paige  (N.  Y.),  277,  285; 
Pfaler  v.  Riiberg,  3  Dem.  Sur.  (N.  Y.) 
360:  In  re  Frazer,  92  N.  Y.  239,  249; 
Einans  \.  Hickman,  12  Hun,  425; 
McGlinsey"s  Appeal,  14  S.  &  R.  (Pa.) 
64:  Bainbridge"s  Appeal,  97  Pa.  St. 
482;  Killebrew  v.  Murphey,  3  Heisk. 
(Tenn.)  446;  Fite  v.  Beaslej-,  12  Lea 
(Tenn.),  428;  Limbrey  v.  Gurr,  6  I\Iad. 
151. 

2  Gafney  v.  Kenison,  64  N.  H.  354, 
357.  10  Atl.  R.  706.  Where  the  tes- 
tator gives  money,  the  amount  of 
tcJn'ch  is  not  definitely  stated,  to  erect 
or  repair  his  tomb,  or  for  anj-  chari- 
table purpose  which  is  invalid,  and 
the  surjjlus  to  a  valid  ch  aril  able  pur- 
X>ose,  all  he  gives  must  then  be  taken 
as  surplus,  particularly  if  the  amount 
for  the  invalid  purpose  can  be  ascer- 
tained to  be  small.  Tiie  valid  chari- 
table object  will  take  as  against  the 
residuary  legatee.  Fisk  v.  Attorney- 
General.  L  R.  4  E<i.  521;  In  re  Will- 
iams' Trust,  L.  R.  5  Ch.  I).  735,  739; 
Hunter  v.  Bullock.  L.  R  14  Etj.  45; 
Fowler  V.  Fowler.  33  Beav.  316,  lOJur. 
(N.  S.)  646.  618.  But  if  the  amount 
which  i.s  to  be  devoted  to  an  illegal 
jiurpose  is  imcertain  and  unascer- 
tainable,  tiie  whole  disposition  fails 
as  a  charitable  gift.  Chaiiniau  v. 
Brown,  0  Ves.  40L 


122i  LAW  or  WILLS.  [§  824. 

§  824.  The  doctrine  of  cy  pies  as  applied  to  charitable 
gifts  by  will. —  Diverse  meanings  attach  to  the  term  cy  jpres^ 
according  as  it  is  employed  in  connection  with  a  charity  founded 
or  attempted  to  be  founded  in  Enghmd  or  in  America.  In 
Enghind,  in  the  reign  of  Charles  II.,  a  doctrine  grew  up  which 
was  fostered  and  advocated  in  the  court  of  equity  and  which 
may  be  thus  generally  stated:  Where  a  donor  or  a  testator 
gives  property  to  charitable  purposes,  and  he  merely  states  his 
charitable  purpose,  object  or  intention  generally,  not  pointing 
out  any  specific  charitable  institution  or  purpose;  or  where  he 
gives  money  for  some  specific  charitable  purpose  which  is  ille- 
gal under  the  statutes  of  mortmain  or  superstitious  uses,  or 
because  the  corporation  or  other  donee  has  not  capacity  to 
take,  the  gift  of  the  testator  may  be  administered  cy  jpres.  That 
is  to  say,  the  disposition  of  such  gift  was  conceived  to  belong  to 
the  king,  a.s  pare?is  jMfrm  and  the  perpetual  patron  and  visitor 
of  all  charities,  and  the  gift  was  accordingly  carried  into  exe- 
cution a^  near  as  possible  (which  is  the  meaning  of  cy  pres)  to 
the  original  intention  of  the  testator  by  the  action  of  the  lord 
chancellor.  The  court  of  chancery,  in  thus  carrying  into  effect 
a,  charitable  gift  that  otherwise  would  have  been  void,  acted 
by  the  royal  sign-manual,  and  not  by  virtue  of  its  ordinary  and 
proper  powers  as  a  court  of  equity.  The  execution  of  the  char- 
itable scheme  cy  pres  was  effected  by  the  royal  prerogative, 
"which,  it  was  assumed,  the  king  would  exercise  wholly  for  the 
public  good,  and  as  near  as  possible  to  the  intention  of  the  tes- 
tator, so  far  as  that  intention  could  be  ascertained.  But  this 
was  matter  of  grace  rather  than  of  right,  for  the  king,  or  his 
representative,  the  chancellor,  was  under  no  obligation  to  ac- 
count to  the  heirs  of  the  donor  or  to  others  for  the  exercise  of 
his  discretion.  His  majesty  was  not  bound,  either  in  law  or 
in  equity,  to  follow  the  intention  of  the  testator,  and  his  dis- 
cretion in  disposing  of  the  property  was,  so  long  as  it  was  given 
to  charity,  absolute  and  unlimited.^  But,  however  arbitrary 
might  be  the  royal  power  in  theory,  its  practice,  when  its  ex- 
ercise was  delegated  to  the  conscientious  and  jnst  men  who, 
from  time  to  time,  exercised  the  functions  of  lord  chancellor, 
"was  quite  the  reverse.  The  power  of  applying  a  charitable 
gift  cy  pres  was  regulated  by  careful  and  systematic  rules,  and 

1  See  Jackson  v.  Pliillips,  14  Allen  fMass.),  574 


§  824]  EULES    REGULATING   CHARITABLE    GIFTS.  1225 

euided  bv  a  desire  to  follow  the  intention,  of  the  testator  as 
nearly  as  possible.  Such  a  mode  of  procedure,  however  called, 
is  in  reality  mainly  a  search  after  and  a  fulfillment  of  the  inten- 
tion of  the  testator.  Hence,  if  the  English  courts  had  stopped 
here,  no  difference  of  jurisdiction  would  have  existed  in  prin- 
ciple between  them  and  similar  courts  in  the  United  States. 
But  they  went  much  further.  For  when  they  could  not  ascer- 
tain a  specific  intention  of  the  testator  or  the  objects  of  such 
an  intention  by  a  liberal  construction,  or  if,  having  ascertained 
the  intention,  they  found  it  would  be  utterly  disappointed  be- 
cause it  was  illegal  or  otherwise  ineffectual,  they  arbitrarily 
supplied  a  specific  charitable  intention  to  carry  out  the  assumed 
charitable  will  of  the"  testator.  Tliey  vmuld  permit  no  devise 
to  fail  in  ivMch  the  testator  had  evinced  a  general  charitable 
jnirjmse.  If  he  failed  to  specify  his  particular  purpose,  to  de- 
line  its  objects,  or  to  give  the  details  of  his  charitable  scheme, 
or  if  he  named  an  illegal  purpose,  the  paternal  jurisdiction  of 
the  chancellor  would  aid  him  by  its  wisdom  and  effectuate  the 
abortive  purpose. 

Soon,  as  was  most  natural,  the  irresponsible  power  which  the 
chancellor  exercised  by  sign-manual  as  a  part  of  the  royal  pre- 
rogative, and  that  which  he  exercised  as  presiding  in  a  court  of 
justice  which  had,  both  inherently  and  by  statute,  a  full  and  com- 
petent jurisdiction  of  charities,  became  intermingled.  It  was  dif- 
ficult to  draw  a  line  of  demarkation  between  the  scope  and  prov- 
ince of  the  royal  prerogative  and  the  ordinary  jurisdiction  of  the 
court.  For  this  reason,  as  pointed  out  by  Judge  Gray,^  a  great 
confusion  of  ideas  has  been  created  by  the  employment  of  the 
words  cypres  to  indicate  two  separate  and  distinct  powers  of  the 
English  chancellor.  The  power  of  disposal  by  the  sign-manual 
was  a  prerogative  power  which  might  be  exercised  by  the  court 
in  direct  opposition  to  the  intention  of  the  testator.  As  a  rule, 
it  was  not  arbitrarily  exercised,  though  some  glaring  cases  of  in- 
justice occurred  in  the  reign  of  (Uiarles  II.,  when  the  royal  pre- 
ro'Mtive  was  at  the  hif^hest  and  the  chancellors  were  ab.solutelv 
subservient  to  the  king.  Such  was  the  case  often  cited  of  a 
bequest  to  th<;  dissenting  divine  llichanl  IJaxtiM-,  to  be  distrib- 
uted l)yiiini  among  sixty  pious  ministers  who  had  been  ejected 
from  their  benefices,  which  was  held  void  as   iUegal  under  the 

1  Jackson  v.  Pliillips,  It  Allen  (Mass.),  571. 


1226  I.AAV   OF    WILLS.  [§  825. 

statute,  and  the  bequest  turned  over  to  Chelsea  College  by  the 
lord  chancellor.^  The  case  subsequently  decided  in  which  a  be- 
quest for  the  establishment  of  a  Jewish  synagogue  was,  on  being 
found  illegal,  diverted  to  erecting  and  maintaining  a  Christian 
or[)han  asylum  (probably  the  very  last  charity  that  the  testator 
would  have  desired  to  benefit),  justly  incurred  the  strictures  of 
all  right-thinking  men,  and  brought  the  whole  doctrine  of  aj 
jpres  into  deserved  discredit.- 

§  825.  The  status  of  the  cy  pres  doctrine  in  the  United 
Stiites. —  The  royal  prerogative  to  supervise  and  control  the 
application  of  charitable  gifts  was  usually  exercised  in  two 
classes  of  cases,  though  it  was  by  no  means  confined  to  them. 
A  gift  could  not  be  executed  cy  pres  where  the  donor  desig- 
nated a  particular  charitable  purpose  which  Avas  valid.  The 
first  class  of  cases  which  were  executed  cy  pres  by  means  of 
the  royal  prerogative  arose  where  the  donor  had  designated  a 
particular  charitable  purpose  which  was  illegal.  Thus  where 
the  charitable  gift  was  to  a  charitable  purpose  which  was  plainh'' 
illegal,  as  for  the  support  of  the  Eoman  Catholic  Church,  which 
was  void  under  the  statute  1  Edward  YL,  chapter  14,  sections 
5-7,  and  23  Henry  VIII.,  chapter  10,  the  particular  purpose  being 
illegal  and  void,  the  property  would  not  be  permitted  to  go  to 
the  heirs  or  next  of  kin,  but  the  gift  would  be  executed  cy  pyres. 

The  second  principal  class  of  cases  consisted  of  gifts  for 
charitable  purposes  generally,  but  which  were  indefinite  either 
as  to  their  purpose  or  objects,  or  where  no  trust  was  created, 
or  where,  a  trustee  being  appointed,  he  either  died  before  act- 
ing or  refused  to  perform  the  trust. 

In  the  first  class  of  cases,  where  the  purpose  of  the  testator 
or  donor  was  illegal,  the  execution  cy  pres  must  of  necessity  be 
in  direct  opposition  to  the  declared  intention  of  the  testator. 
"Where  a  testator  bequeaths  money  to  a  specific  purpose  which 

1  Attorney -General     v.    Baxter,    1  gift,  but  to  the  sixty  ministers  as  in- 

Vern.  248,  2  Vern.  105.     The  testator  dividuals.     This  decision   was  just, 

expressly  declared  that  he  gave  this  though  I  do  not  admit  of  the  validity 

to  these  ministers  because  they  icere  of  tlie  grounds  on  wliich  it  was  based. 

good  men  in  great  need,  and  not  he-  -  Da  Costa  v.  De  Pas,  Amb.  228,  2 

cause  they  iL-ere  non-conformists.  The  Swanston,  289,  note,  1  Dick.  258.   See 

privy  council  reversed  the  decision  also  the  remarks  of  the  court  in  Mog- 

of  the  chancellor  upon  tlie  grounds  gridge  v.  Thackwell,  1  Ves.  Jr.  4(59, 

that  the  gift  was  not  a  charitable  and  Gary  v.  Abbott,  7  Ves.  494,  495. 


§  S25.]  KULES    REGULATING    CHARITABLE    GIFTS.  1227 

fails  because  of  its  illegality,  it  is  reasonable  to  assume  that  lie 
intended,  in  such  event,  that  the  property  should  go  to  the 
residuary  legatee  or  devolve  or  descend  as  in  a  case  of  intes- 
tacy. To  take  a  bequest  which  the  donor  gave  to  establish  a 
synagogue  and  with  it  to  erect  a  foundling  asylum  is  an  ex- 
ample of  the  grossest  injustice  to  the  heirs  and  next  of  kin 
which  would  not  be  tolerated  in  modern  times.  And  it  is  im- 
material whether  the  power  to  make  such  an  absurd  disposition 
has  been  attached  to  the  crown  as  head  of  the  church,  "  in- 
trusted and  empowered  to  see  that  nothing  is  done  to  .  .  . 
the  propagation  of  a  false  religion,"  ^  or  whether  it  was  intro- 
duced from  the  civil  and  Roman  law  under  which  the  emperor, 
as  the  fontes  legum,  had  a  dispensing  power  by  which  he  was 
the  supreme  law  maker  and  source  of  justice.  Such  arbitrary 
power  has  no  place  in  any  portion  of  our  government,  state  or 
national.  It  is  clearly  not  a  judicial  power.  Kor  can  it  be  con- 
ceived that  a  state  legislature  or  the  federal  congress  could, 
by  statute,  work  a  forfeiture  to  the  government  of  property 
devised  (for  that  is  practically  what  it  amounts  to),  in  case  the 
devise  happens  to  contravene  a  statute.  Least  of  all  could  this 
be  done  under  constitutional  restrictions  upon  the  power  of  the 
legislature  or  judiciary  to  establish  or  to  favor  any  form  of  re- 
ligion. 

The  other  main  class  of  cases  in  which  the  doctrine  under 
consideration  has  been  applied  consists  of  cases  where  the  gift 
is  for  charity  in  general ;  that  is,  where  there  is  a  general  and 
indefinite  purpose,  and  no  trust  is  created  or  trustee  appointed 
to  exercise  a  discretion  in  selecting  the  objects  of  the  charit}^ 
and  the  court  takes  it  upon  itself  by  virtue  of  the  prerogative 
to  execute  the  gift  within  the  purpose  of  the  testator.  Under 
such  circumstances,  to  select  a  particular  purpose  for  a  testator 
who  has  Ijiinsclf  failed  to  express  one,  to  assume  an  intention 
not  stated,  is  not  a  judicial  jxnver,  and  if  exercised  by  a  court 
at  all  must  be  exercised  cxtra-judicially.  Such  a  power  nun/ 
exist  somewhere  in  a  republican  ionii  of  government.  It  may 
be  vested  in  the  legislature,  to  be  carried  out  and  exercised  by 
statutes  of  a  general  character  enacted  within  constitutional 
limitations  and  construed  an<l  enforced  by  the  courts  in  <'on- 
forinity  with   rccogni/cd  rules  and  |)rincipl('s  of  law.     JJut  in 

•  Kex  V.  i'ortiiiKton,  1  Salk.  KJJ.  I  Va\.  (*iu  Al..  '.Mi. 


122S 


LAW    OF    "WILLS. 


[§  825. 


the  absence  of  such  statutes  it  is  not  for  a  judicial  officer,  sworn 
to  interpret  the  laws  as  he  finds  them,  to  supply  an  intention 
wliich  is  not  expressed.^  ITence,  generally,  the  cy  pres  doctrine, 
or  anything  approaching  to  it,  as  it  was  held  in  the  English 
coui'ts  of  chancery,  is,  and  almost  always  has  been,  repudiated 
in  the  United  States  so  far  as  charities  are  concerned,  though 
the  courts  in  all  the  states  will  employ  the  most  liberal  rules 
of  construction  and  go  to  very  great  lengths  in  order  to  ascer- 
tain the  real  intention  of  the  testator,  and  having  ascertained 
it  to  carry  it  out,  but  only  so  far  as  it  appears  to  have  in  fact 
existed.' 


1  "  This,  too.  is  not  a  judicial  power 
of  exix)undir.g  and  carrying  out  the 
testator's  intention,  but  a  prerogative 
power  of  ordaining  what  the  testa- 
tor has  failed  to  express.  No  instance 
is  reported,  or  has  been  discovered,  in 
the  tliorough  investigations  of  tlie 
subject,  of  an  exercise  of  this  power 
in  England  before  the  reign  of 
Cliarles  II.  Moggridge  v.  Tiiackwell, 
7  Ves.  69-81;  Dwight's  Argument  in 
the  Rose  Will  Case,  273.  It  lias  never, 
so  far  as  we  know,  been  introduced 
into  the  practice  of  any  court  in  this 
country,  and,  if  it  exists  anywhere 
here,  it  is  in  the  legislature  of  the 
commonwealth  as  succeeding  to  the 
power  of  the  king  as  pareim  patrice. 
4  Kent,  Comm.  508.  note;  Fontain  v. 
Ravenal,  17  How.  369, 384.  389;  Moore 
V.  Moore.  4  Dana,  365,  366;  Whitman 
V.  Lex.  17  S.  &  R.  (Pa.)  93;  Attorney- 
General  V.  Jolly,  1  Rich.  Eq.  109;  Dick- 
son V.  Montgomery,  1  Swan.  348;  Le- 
page V.  McNamara,  5  Iowa,  348 ;  Bart- 
lett  V.  Bang,  13  Mass.  545;  Sohier  v. 
Hospital,  3  Cush.  496,  497.  It  cer- 
tainly cannot  be  exercised  by  the  ju- 
diciary of  a  state  whose  constitution 
declares  that  the  judicial  department 
shall  never  exercise  the  legislative 
and  executive  powers,  or  either  of 
them,  to  the  end  that  it  may  be  a 
government  of  laws  and  not  of  men." 
Remarks  of  Gray.  J.,  in  the  leading 
case  of  Jackson  v.  Phillips,  14  Allen 
(Mass.),  274. 


2  Carter  v.  Balfour,  19  Ala.  814; 
Williams  v.  Pear.son,  38  Ala.  299; 
White  V.  Fisk,  23  Conn.  31 ;  Hayden 
V.  Connecticut  Hospital,  64  Conn.  320, 
30  AtL  R.  50:  Starkweather  v.  So- 
ciety, 72  111.  50;  Erskine  v.  White- 
head, 84  Ind.  357,  361;  Grimes  v. 
Harmon,  35  Ind.  246;  Johnson  v. 
May ne.  4  Clarke  (Iowa).  180;  Curling 
v.  Curling,  8  Dana  (K\-.),  38;  Beek- 
man  v.  Bonsor.  23  N.  Y.  298.  27  Barb. 
(N.  Y.)  260;  Williams  v.  Williams,  8 
N.  Y.  541;  Holland  v.  Alcock,  108 
N.  Y.  312,  16  N.  E.  R.  405;  Brooks  v. 
Brooks.  90  Me.  326  et  seq. ;  Drew  v. 
Wakefield,  54  Me.  291;  Campbell  v. 
City,  102  Mo.  326,  13  S.  W.  R  897; 
Holland  v.  Peck,  2  Ired.  (N.  C.)  Eq. 
255;  Board  v.  Edson,  18  Ohio  St.  221: 
Kelly  V.  Nichols,  18  R  I.  63, 25  Atl.  R. 
840;  Pringle  v.  Dorsey,  3  S.  C.  509; 
Johnson  v.  Johnson,  92  Tenn,  559: 
Green  v.  Allen,  5  Humph.  (Tenn.)  170; 
Dickson  v.  Montgomery,  1  Swan 
(Tenn.),  348;  Smith  v.  Nelson,  18  Vt. 
554;  Hoffen's  Estate,  70  Wis.  522, 524; 
Ruth  V.  Oberbrunner,  40  Wis.  238; 
Merrill  v.  College,  74  Wis.  245,  415 
419;  In  re  Fuller's  Will,  75  Wis.  431, 
44  N.  W.  R  304;  Webster  v.  Morris. 
66  Wis.  366,  390,  391;  McHugh  v. 
Cole.  97  Wis.  166,  72  N.  W.  R  631; 
Le  Clerq  v.  Gallipolis,  7  Ohio,  217,  and 
Mclntire  v.  Zanesville,  17  Ohio  St. 
352,  360,  367  (in  the  latter  case  a  de- 
vise for  "  poor  schools  in  the  city  of 
Zanesville "  was  upon  the  establish- 


§  S25.] 


KLLES    KEGULATIXG    CHARITABLE    GIFTS. 


1229 


In  a  few  of  the  state  courts  and  in  the  United  States  supreme 
court  the  cy  pres  doctrine  in  a  modified  form  is  recognized. 
Thus,  in  Massachusetts,  it  was  held  in  the  year  1S67  that, 
where  a  gift  was  given  for  a  charitable  purpose  which  was 
lawful,  the  court  would  carry  it  out  by  devotiuir  it  to  another 
and  analogous  purpose,  where  by  reason  of  a  change  of  cir- 
cumstances the  carrying  out  of  the  original  purpose  had  be- 
come impracticable  and  useless.^  Thus,  a  testamentary  gift 
originally  intended  to  promote  the  abolition  of  slavery,  but 
rendered  useless  because,  prior  to  the  death  of  the  testator,  this 
result  had  been  brought  about  by  other  means,  was  given  over, 
by  a  court  of  chancer}^  under  the  doctrine  of  cr/jn'cs,  to  schools 


ment  of  a  free-school  system  devoted 
to  night  schools,  etc. ).  "  We  are  sat- 
isfied that  the  cy  pres  doctrine  of 
England  is  not  and  should  not  be  a 
judicial  doctrine,  except  in  one  kind 
of  case,  and  that  is,  where  there  is  an 
available  charity  to  an  identified  or 
ascertainable  object  and  a  pai-ticular 
mode,  inadequate,  illegal  or  inappro- 
priate, or  which  happens  to  fail,  has 
been  prescribed.  In  such  a  case  a 
court  of  equity  may  substitute  or 
sanction  any  other  mode  that  may 
be  lawful  and  suitable  and  will  ef- 
fectuate the  declared  intention  of 
the  donor,  and  not  arbitrarily  and 
in  the  dark,  presuming  on  his  mo- 
tives or  wishes,  declare  an  object  for 
him.  A  court  may  act  judicially  as 
long  as  it  effectuates  the  lawful  in- 
tent of  the  donor.  But  it  does  not 
act  judicially  when  it  ai)plies  his 
bounty  to  a  specific  object  of  cliarity 
selected  by  itself,  merely  because  lie 
has  dedicated  it  to  charity  generally 
or  to  a  specific  puri)ose  which  cannot 
be  effectuated;  for  tlie  court  cannot 
know  or  decide  that  he  would  have 
been  willing  tluit  it  should  be  up- 
plied  to  the  object  to  which  the 
judge,  in  the  plenitude  of  liis  unreg- 
ulated discretion  and  |M'culiar  benev- 
olence, has  bt-t'U  fit  to  decree  its  ajH 
lirojtriation,  whtm-liy  ho  and  not  tho 
donor,  in  elFcct  and  at  last,  creates 


the  charity."  Remarks  of  the  court 
by  Robinson,  C.  J.,  in  Moore  v.  Moore, 
4  Dana  (Kj-.),  360. 

1  Jackson  v.  Phillips,  11  Allen 
(Mass.),  589,  550.  In  this  case  the 
court  says:  "  When  a  gift  is  made  to 
trustees  for  a  charitable  purpose,  the 
general  nature  of  which  is  pointed 
out,  and  which  is  lawful  and  valid  at 
the  time  of  the  death  of  the  testator, 
and  no  intention  is  expressed  to  limit 
it  to  a  particular  institution  or  mode 
of  application,  and  afterwards,  either 
by  change  of  circumstances  the 
scheme  of  the  testator  becomes  im- 
practicable, or  by  change  of  law  be- 
comes illegal,  the  fund,  having  once 
vested  in  the  charity,  does  not  go  to 
the  heirs  at  law  as  a  resulting  trust, 
but  is  to  be  applied  by  the  court  of 
chancer}',  in  tlie  exercise  of  its  juris- 
diction in  equity,  as  near  the  testa- 
tor's particular  direction  as  i>ossible 
to  carry  out  his  general  intent.  In 
all  the  cases  of  charities  which  liave 
been  administered  in  the  English 
courts  of  chanceiy  without  the  aid 
of  the  sign-manual,  the  prerogative 
of  the  king,  acting  through  the  chan- 
cellor, has  not  been  alluded  to  except 
for  the  pur|K^>se  of  distuiguishing  it 
from  the  iK)W«'r  exerci.sed  by  the 
court  in  its  inherent  jurisdiction 
with  the  assistance  of  its  masters  iu 
chancery." 


1230  LAW   OF   WILLS.  [§  825. 

foumled  for  the  purpo.se  of  educating  the  freedmen  and  for  the 
education  of  colored  persons  generally.' 

"Where  the  rule  of  ci/  j)/'es,  as  it  has  been  defined  and  limited 
within  reasonable  bounds,  is  recognized,  a  gift  by  will  for  the 
benefit  of  poor  families  in  a  city  to  aid  the  children  of  such 
families  in  attending  school  was  upon  the  establisliment  of 
free  schools  in  that  city  devoted  to  the  purchase  of  books  for 
the  latter.-  So,  where  money  was  given  to  support  a  school- 
liouse  in  a  particular  district,  and  this  school  district  was  sub- 
sequently aljolished  by  statute,  the  income  of  the  money  was 
devoted  to  the  su[)port  of  another  school  within  the  same  ter- 
ritorial limits,  though  children  from  outside  of  the  district  at- 
tended.* The  doctrine  of  cy  j^res  is  also  applicable  where  the 
testator  has  made  a  valid  charitable  gift  in  trust  for  a  particu- 
lar charitable  institution,  definitely  designated,  and  after  his 
death,  and  consequently  after  the  gift  has  vested  in  the  partic- 
ular institution,  it  suspends  operations.  In  such  case  the  trustee 
does  not  take  for  his  own  benefit,  even  though  it  be  a  religious 
corporation,  but  a  court  of  equity  will  apply  the  funds  for  a 
similar  charitable  purpose  through  an  institution  of  a  similar 
character  as  that  which  has  suspended,  or  as  near  as  possible 
to  the  orig-inal  intention  of  the  testator.* 

If,  however,  the  testator  has  not  used  languacje from  icJiich  a 
general  intent  may  be  implied,  or  if  he  has  pointed  out  some 
particular  institution  or  mode  of  application  by  which  the 
charity  is  to  be  carried  out,  the  court  will  not  decree  an  execu- 
tion cy  i^res^  Avhen,  for  any  reason,  the  carrying  into  effect  of 
the  particular  intent  of  the  testator  becomes  impracticable. 
Thus,  where  a  testatrix  gave  money  for  the  purchase  of  a  chapel, 

1  Jackson  r.  Phillips,  14  Allen  its  modified  form  by  tlie  fedei-al 
(Mass.),  539,  550:  Attorney-General  v.  courts.  See  Loring  v.  Marsh,  6  Wall. 
Garrison,  101  Mass.  227:  Attorney-  (U.  S.)  337;  Perrin  v.  Carey,  24  How. 
General  v.  Briggs.  164  ^lass.  561,  42  (U.  S.)  465:  Vidal  v.  Girard.  2  How. 
N.  E.  R.  118;  Theological  Society  v.  (U.S.)127;Fontainv.Ravenal.l7How. 
Attorney-General,  135  Mass.  285.  289;  (U.  S.)  369.  Tlie  doctrine  of  cypres, 
Stratton  v.  Physio-Medical  Society,  whereby  trust  provisions  of  a  will 
149  Mass.  505,  21  N.  E.  R  874.  are  executed  as  near  to  the  presumed 

2  Birchard  v.  Scott,  39  Conn.  63.  intention  of  the  testator  as  may  be, 

3  Attorney-General  v.  Briggs,  42  N.  is  not  recognized  in  Wisconsin.  Mc- 
E.  R.  118, 164  Mass.  561.  Hugh  v.  McCole,   72   N.  W.    R.  631 

*  Barnard  v.  Adams,  58  Fed.  R.  313.     (Wis.,  1897). 
The  cy  pres  doctrine  is  supjxjrted  in 


§  825.]  RULES    REGULATING    CHARITABLE    GIFTS.  1231 

the  title  to  wliicli  was  to  be  vested  in  the  bishop,  for  the  per- 
petual religious  services  of  the  Roman  Catholic  church  in  her 
native  town,  and  the  bishop  refused  to  take  part  in  the  matter, 
thus  rendering  the  scheme  impracticable,  it  was  held  tliat  an 
execution  of  the  gift  cf/  j?res  could  not  be  had.  The  intention 
of  the  testator  was  clearly  not  a  general  one  to  advance  religion 
in  the  parish,  but  to  build  and  support  a  chapel  in  one  particular 
place,  and,  this  failing,  no  other  purpose  could  be  substituted.^ 
The  power  of  equity  to  carry  out  a  charitable  gift  cij  j)res  is 
recognized  in  ]\[issouri  as  a  part  of  the  inherent  power  of  equity 
to  execute  trusts,  independently  of  the  statute  of  Elizabeth  and 
irrespective  of  the  English  rule  regarding  it  as  a  branch  of 
the  royal  prerogative.-  So  where  the  scheme  of  the  testator  for 
the  erection  of  a  building  which  was  to  be  occupied  by  two 
charitable  corporations  jointly  became  impracticable  on  ac- 
count of  the  character  and  surroundings  of  the  property,  the 
court  decreed  a  sale  of  the  same  and  authorized  each  institu- 
tion to  receive  a  portion  of  the  proceeds  to  be  devoted  to  the 
erection  of  a  separate  edifice  for  each  association.'  It  has  been 
Boted  that  in  Pennsylvania  charitable  institutions  are  greatly 
favored,  and  the  courts  go  to  great  lengths  in  seeking  out  and 
effectuating  the  intention  of  the  testator.  And  while  the  courts 
repudiate  any  claim  to  possess  any  branch  of  the  royal  prerog- 
ative, or  to  exercise  anv  powers  not  entirely  judicial,  it  may, 
with  entire  correctness,  be  said  that  they  recognize  a  power  to 
construe  cypres  the  charitable  meaning  of  the  testator  so  far 
as  such  power  is  modified  by  the  principles  of  our  government 
and  laws.* 

iTeele  v.  Bishop  of  Deny  (Mass.,  2 Missouri    Historical    Society    v. 

1S98),  47  N.   E.  R  422.     The  case  of  Academy  (Mo.,  1895),  8  S.  W.  K.  :M0; 

Attorney-General  v.  Bishop  of  Ox-  Academy  v.    Clemens,   50   Mo.    1G7; 

ford,  1  Bro.  C.  C.  444,  n.,  was  similar.  Goode  v.  ]\IcPherson,  51  Mo.  12G. 

The  testator  left  money  to  ••  build  a  ^Missouri     Historical     Society    v. 

church  at  W.  where  the  chapel  now  Academy  of  Science  (Mo.,  1895),  8  S. 

in,"  anil  as  the  defendant,  who  was  W.  R  340. 

]x)th  pars<jri  and  patron,  would  not  *  Pickering    v.   Shotwell,    10   Barr 

sanction    its  Ijeing    Imiit.   the    lord  (Pa.),  27;  Methodist  Church  v.  Ken>- 

cluincellor.  as  against  a  claim  on  the  ington.  1  Watts  (Pa.).  218;  Wiiitmau 

jKirt  of  tiieward.jnsoftli.'oldclmn-h  v.   Lex.  17  S.  &  R  (Pa..  1827),  88,  91; 

that   it  should   be   n'paircd.  dccrt'cd  In  re  Lewis'  Kstatc.  11  Pa.  Co.  Ct.  R 

that  tin- money  should  Im' paid  lo  the  5(il:  KlaliiTly's   Kstatf.  2   I'ars.  Cas. 

next  of  kin.     The  charital»lc   iritfii-  IHJ;    Philadelphia  V.  Cirurd,  45  Pa. 

tion   was  certainly  specific   in   both  Si.  I). 

thcst'  cases. 


1232  LAW    OF    AVIT.LS.  [§  826. 

§  82G.  rnccrtiiinty  and  indefiniteness  as  regards  cliarita- 
l)le  gifts. —  Although  the  rules  of  law  and  the  principles  of 
equity  which  are  applicable  to  trusts  which  are  not  charitable 
are  not  applied  with  the  same  degree  of  strictness  to  trusts 
which  are  charitable,  still,  in  very  many  cases,  courts  of  equity 
have  refused  to  sustain  cliaritable  trusts  for  the  reason  that 
the}'  were  indefinite  and  uncertain  in  some  one  or  more  re- 
spects. The  cases  in  which  charitable  gifts  have  failed  on  ac- 
count of  uncertainty  may  be  classified  under  three  heads: 

Fh'st.  The  uncertainty  or  indefiniteness  which  Avill  invali- 
date the  trust  may  relate  to  the  purpose  of  the  charitable  trust 
itself,  and  it  may  cause  a  failure  of  the  trust  even  where  the 
trustee  is  definitely  designated,  as,  for  instance,  in  the  case  of 
a  bequest  to  trustees  or  executors  of  money  to  devote  "to 
charitable  and  religious  purposes,"  ^  or  a  bequest  to  the  execu- 
tor "  for  religious  purposes,"  ^  or  for  "  foreign  missionary  pur- 
poses and  for  the  poor  saints,"  ^  or  for  benevolent  purposes,* 
and  there  is  no  institution  or  means  jpointed  out  hj  which  the  gift 
may  he  carried  into  effect.^ 

Second.  The  indefiniteness  and  uncertainty  may  relate  to 
the  person  or  to  the  institution  that  is  to  act  as  the  trustee  of 
the  charity,  and  may  arise  either  {a)  because  no  trustee  is  named 
at  all,^  or  ih)  because  the  person  or  institution  named  as  trustee 
is  incapable  of  taking  or  of  executing  the  trust,"  or  (<?)  because 
he  or  it  refuses  to  take,  or  {d)  because  of  a  misnomer,  as  where 
there  are  two  or  more  persons  or  corporations,  each  answering 
in  some  one  or  more  particulars,  but  none  answering  in  all,  to 
the  description  as  contained  in  the  will  of  the  testator.^ 

Third.  The  uncertainty  and  indefiniteness  may  relate  to  the 
character  of  the  beneficiaries,  and  may  arise  from  the  mode  in 
which  they  are  designated  by  the  testator,  as  when  they  are 

1  Gambel  v.  Trippe,  75  Md.  252,  23  so  far  as  its  purpose  is  conceroed, 

AtL  R  461.  yet,  if  the  testator  has  appointed  a 

-'Webster  v.  Morris,  66  Wis.  366,  trustee  with  a  power,  in  his  discre- 

392.  tion,  to  select  some  specific  mode  of 

3  Bridges  V.  Pleasants,  4  Ired.  (N.  C.)  canying  out  the  purpose,  and  of  re- 

Eq.  26.  ducing  it  to  a  practical  application, 

*  Ante,  g  821.  the  gift  will  not  fail    See  cases  cited 

5  But  it  should  be  noted  in  con-  under  §  832. 

nection    with    this    class    of    cases  <>  Post.  ^  828. 

that,  though  the  gift  itself  is  in  the  '  Post,  %  830. 

vaguest  and  most  indefinite  terms  8  Post,  §  831. 


j;   S27.]  KL'LES    EEGULATIXG    CHARITABLE    GIFTS.  1233 

SO  vaguely  and  generally  designated  that  they  cannot  be  ascer- 
tained either  by  the  trustee  whom  the  testator  has  named  or 
by  a  court  of  equity  to  whom  the  trustee  has  applied  for  guid- 
ance. An  example  of  this  Avould  be  where  the  testator  has 
bequeathed  money  to  a  trustee  to  be  distributed  "  among  the 
poor  and  unfortunate,^^  or  to  be  devoted  to  the  "  education  of 
the  colored  people^''  or  to  be  distributed  ^^  arinriKj  poor  loidows^''  ^ 
or  to  propagate  the  gospel,"  and  the  testator  has  not  only  failed 
to  designate  the  institution  or  mode  in  which  his  bounty  is  to 
be  applied,  but  has  also  not  limited  it  to  beneficiaries  in  any 
particular  place.' 

^lost  cases  of  uncertainty  in  charitable  gifts  range  them- 
selves under  one  of  these  heads.  Some  may  come  under  all  of 
them.  In  the  latter  case  the  invalidity  of  the  gift  is  incur- 
able, and  it  will  fail  as  a  charitable  gift.  These  various  classes 
of  invalid  charitable  gifts  we  will  now  proceed  to  consider  in. 
detail. 

§  827.  The  iudefiuiteness  of  tlie  beneficiaries  of  tlie  charity. 
Trusts  for  charitable  purposes  constitute  a  striking  exception 
to  the  general  rule  that  the  cestuis  que  trust  for  whose  heneft  the 
trust  has  heen  created  must  he  definitely  ascertained  and  pointed 
out  by  the  person  who  has  given  the  property  in  trust.  In  the 
case  of  ordinary  trusts  the  donor  of  a  trust  must  not  only  con- 
fer the  legal  title  to  the  property  which  he  conveys  in  trust 
upon  some  definite  person,  but  he  must  point  out  by  name,  or 
in  some  other  equally  definite  manner,  the  particular  person  or 
persons  who  are  to  be  the  beneficiaries  under  the  trust.  In  the 
case  of  charitable  trusts  the  case  is  quite  otherwise,  for  it  is 
immaterial  how  uncertain  and  indefinite  the  ultimate  benefi- 
ciaries of  a  charity  are,  if  there  is  pointed  out  a  legal  mode  of 
ascertaining  who  they  are,  and  of  distributing  the  bounty  of 
the  donor  among  them  in  accordance  with  his  intention.  In 
order  to  constitute  a  valid  charitable  trust  the  testator  must, 
Jirnt,  appoint  a  trustee,  or,  either  expressly  or  by  imj)lication, 
show  ;i  clear  intention  tiiat  the  court  of  <'(|iiity  shall  a]>i>()int 
f>ne  for  him  ;  and  second^  he  must  direct  that  his  money  ov  oilier 

'  Oalloj^o  V.  Attorney-General,  3  cisions  on  tin'  (iiicstion  of  tlio  cliar- 
L»'ij?li  (Vju).  AT}{).  acter  of   tliu    boneliciurics    uro   dif*- 

-  t.'arjHjnter  v.  Milli-r, :'  \V.  \'ii.  171.     cuMsud. 
'See  %  827,  where  tlie  various  do- 
7« 


1234 


LAW    OF    WILLS. 


[§  82T. 


])roportv  shall  be  applied  to  a  purpose  which  is  in  itself  legally 
charitable,  and  which  is  not  so  indefinite  that  it  cannot  be  car- 
ried into  execution.  If  he  shall  do  this,  his  intention  is  not  to 
fail  because  the  beneficiaries  consist  of  a  vague,  indefinite  and 
fluctuating  class  of  persons.  Indeed,  in  many  of  the  cases  it 
has  been  held  that  the  indefiniteness  of  the  beneficiaries  is  of 
the  very  essence  of  a  charitable  trust,  and  that  no  trust  is  tech- 
nically and  legally  charitable  unless  the  beneficiaries  are  thus 
vaa'ue  and  indefinite.^ 


1  Williams  v.  Pearson,  38  Ala.  299; 
People  V.  Cogswell  (Cal.),  45  Pac.  R.  270 ; 
Treat's  Appeal, 30  Conu.113;  Birchard 
V.  Scott,  39  Conn.  63;  Beckwith  v. 
Rector,  69  Ga.  569;  State  v.  Griffith, 
2  Del.  Cb.  392;  Goodrich's  Appeal,  57 
Conn.  275,  18  Atl.  R.  49;  Woodruff  v. 
Marsh,  63  Conn.  125;  Newson  v.  Stark, 
46  Ga.  88;  In  graham  v.  Ingraham, 
169  111.  432,  450;  Grand  Prairie  Sem- 
inary V.  Morgan,  49  N.  E.  R.  516,  171 
111.  444,  448;  Heuser  v.  Allen,  42  111. 
425;  De  Bruler  v.  Ferguson,  54  Ind. 
549;  Miller  v.  Chittenden,  2  Iowa, 
315;  Phillips  v.  Harrower  (Iowa),  61 
N.  W.  R.  434;  Lepage  v.  JIcNamara, 
r)  Iowa,  414;  Kinney  v.  Kinney,  86 
Ky.  610,  6  S.  W.  R.  593;  Moore  v. 
Moore,  4  Dana  (Ky.),  354;  Bedford  v. 
Bedford  (Ky.,  1890),  35  S.  W.  R.  926; 
Fink  V.  Fink,  12  La.  Ann.  301 ;  Needles 
V.  IMartin,  33  Md.  609;  Bartlett  v. 
King,  12  Mass.  537;  Saltonstall  v. 
Sanders,  11  Allen,  456,  464:  Chana- 
bers  V.  St.  Louis,  29  ]Mo.  543;  Kurz- 
man  v.  Lowy,  52  N.  Y.  S.  83,  23  Misc. 
R  380;  Beekman  v.  Bonsor,  23  N.  Y. 
298;  Downing  v.  Marshall,  23  N.  Y. 
366;  Goddard  v.  Pomeroy,  36  Barb. 
(N.  Y.)  546;  Levy  v.  Levy,  33  N.  Y. 
1)7;  Paschal  v.  Acklin,  27  Tex.  196;  In 
re  Ingersoll's  Will,  59  Ilun,  571 ;  Miller 
V.  Teachout,  24  Ohio  St.  525;  Gerke 
V.  Purcell,  25  Ohio  St.  267;  Raley  v. 
County  of  Umatilla,  15  Oreg.  172,  13 
Pac.  R.  890;  Croxall's  Estate  (Pa.  St.), 
29  Atl.  R.  759;  Schultz's  Appeal.  80 
P;i.  St.  396;  Board  of  Foreign  Mis- 
sions V.  Culp,  151  Pa.  St.  467,  25  AtL 


R.  117,  31  W.  N.  C.  135;  Brennaa 
V.  Winkler,  37  S.  C.  457,  16  S.  E.  R. 
190;  Dickson  v.  Montgomery,  1  Swan 
(Tenn.),  348;  Ileiskell  v.  Lodge,  3 
Pickle  (Tenn.),  168;  Johnson  v.  John- 
son, 92  Tenn.  559,  565,  23  S.  W.  R.  114; 
Fadness  v.  Braunborg,  73  Wis.  257, 
41  N.  W.  R.  84;  Sawtelle  v.  Witham, 
94  Wis.  412,  414.  69  N.  W.  R.  72; 
Dodge  V.  Williams,  46  Wis.  70,  98; 
Gould  V.  Orphan  Asylum,  46  Wis. 
106.  A  bequest  of  property  "to  be 
used  "  by  the  bishop  of  the  diocese 
of  G.,  "  for  the  benefit  and  behoof  of 
the  Roman  Catholic  Churcii,"  is  too 
indefinite  to  be  executed.  McIIugh 
V.  McCole,  72  N.  W.  R.  631  (Wis.,  1897). 
In  some  of  the  states  it  seems  to  be 
the  rule,  which  is  sustained  by  the 
earlier  cases,  that  practically  the 
same  requirements  as  to  the  definite- 
ness  of  the  beneficiaries  of  the  trust 
is  required  in  the  case  of  a  charitable 
trust  as  are  required  where  the  trust 
is  for  a  private  pur^jose.  See,  as  sus- 
taining this  view,  the  cases  of  Needles 
V.  Martin,  33  Md.  609;  Dashiel  v.  At- 
torney-General, 5  H.  &  J.  (Md.)  32, 400 ; 
W^ilderman  v.  Baltimore,  8  Md.  551; 
Virginia  v.  Levy,  23  Gratt.  (Va.)  21; 
Seaburn  v.  Seaburn,  15  Gratt.  (Md.) 
423;  Gallego'sEx'rs  v.  Attorney-Gen- 
eral, 3  Leigh  (Va.),  450;  Trustees  v. 
Chamber's  Ex'rs,  3  Jones'  Eq.  (N.  C.) 
453;  Holland  v.  Peck,  2  Ired.  Eq.  (N.  C.) 
255;  Miller  v.  Atkinson,  63  N.  C.  537; 
Venable  v.  Coffman,  2  W.  Va.  310; 
Carpenter  v.  Miller,  3  W.  Va,  174. 


§  S27.] 


EULES    REGULATING    CHARITABLE    GIFTS. 


123S 


Thus,  a  gift  for  the  benefit  of  the  poor  generalhj^  or  for  edu- 
cational purposes  to  be  expended  under  the  direction  of  trustees, 
named  by  the  testator  or  to  be  named  by  the  court,^  for  thet 
education  of  worthy  and  indigent  youths,  or  for  the  education 
of  poor  children,'  "  for  poor  widows  over  the  age  of  fifty  of 
irreproachable  character  who  have  resided  not  under  three 
years  within  eight  miles  of  the  town  and  who  have  no  certain 
income,"*  or  for  an  asylum  for  Protestant  widows  and  orphans,"' 
has  been  held  sufficiently  definite.® 


1  See  ante,  §§  816,  817. 

2See§814 

SNewson  v.  Starke,  46  Ga.  88; 
Heuser  v.  Allen,  42  111.  425. 

*  Bruler  v.  Ferguson,  54  Ind.  549. 

s  Fink  V.  Fiuk,  12  La.  Ann.  301. 

^In  his  excellent  Treatise  on  the 
Law  of  Trusts,  at  §  732,  Mr.  Perry 
says:  "It  is  immaterial  how  uncer- 
tain, indefinite  and  vague  the  cestuis 
que  trust  or  final  beneficiaries  of  a 
charitable  trust  are,  provided  there 
is  a  legal  mode  of  rendering  them 
certain  by  means  of  trustees  ap- 
pointed or  to  be  appointed.  In  other 
words,  it  is  immaterial  how  uncertain 
the  beneficiaries  or  objects  are,  if  the 
court,  by  a  true  construction  of  the 
instrument,  has  power  to  appoint 
trustees  to  exercise  the  power  or  dis- 
cretion of  making  the  beneficiaries 
as  certain  as  tlie  nature  of  the  trust 
required  them  to  be."  "  It  seems  to 
be  now  settled  tliat  a  gift  to  charity, 
if  there  is  a  comi)etent  trastee,  al- 
though there  is  no  ascertained  or 
ascertainable  l^eneficiary,  may  still 
be  upheld,  provided  the  charitable 
iLse  is  so  clearly  defined  as  to  be  ca- 
pable of  being  specifically  executed 
and  enforced  as  intended  by  the 
donor,  by  judicial  decree."  By  the 
court  by  Jobnson,  J.,  in  Goddard  v. 
Pomeroy,  36  Barb.  (N.  Y.)  046.  The 
lat«  Satnuel  J.  Tilden  in  his  will  au- 
tlioriwMl  li is  trustees  U)  procure  "an 
act  of  incor|K^ration  of  an  institution 
to  be  known  as  tlic  'Tildcu  Trust,' 
with  capacity  to  maintain  and  estab- 


lish a  free  library  and  reading  room^ 
.  .  .  and  to  promote  such  scientific: 
and  educational  objects  as  my  said 
executors  and  trustees  may  more 
particularly  designate;  and  such  in- 
stitution shall  be  incorporated  in  a 
form  and  manner  satisfactory  to  my 
said  trustees."  The  testator  further 
said  that  "I  hereby  authorize  my 
said  executors  and  trustees  to  organ- 
ize the  said  corporation,  desiguat& 
the  first  trustees  thereof,  and  to  con- 
vey or  apply  to  the  use  of  the  same 
the  rest„  residue  and  remainder  of 
all  my  real  and  personal  estate  not. 
specifically  disposed  of,  .  .  .  or 
so  much  thereof  as  they  may  deeni; 
expedient."  subject  to  the  special, 
trusts  therein  created.  "  But  in  case^ 
such  institution  shall  not  be  so  in- 
coi'porated"  within  the  times  men- 
tioned, "  or  if  for  any  cause  or  reason', 
my  said  executors  and  trustees  shall 
deem  it  inexpedient  to  convey  said  '" 
residue,  "or  any  part  thereof,  or  to 
apjily  the  same,  or  any  part  thereof, 
to  the  said  institution,  I  authorize'* 
them  toapi)ly  it,  "after  making  good 
the  said  special  tru-sts  lierein  directed 
to  be  constituted,  ...  to  such 
charitable,  educational  and  .scien- 
tific purposes  as  in  the  judgment  of 
my  said  executors  and  trustees  will 
render  the  rest,  residue  and  re- 
mainder of  my  projK'rty  most  widely 
and  sul)staiilial!y  bcnolicijil  to  thi» 
interests  of  mankind." 

In  construing  this  will  the  court  of 
apiicals  hold  i\\:i{.  first,  the  schcnieas 


1236  LAW   OF   WILLS.  [§  828. 

§  828.  The  jurisdiction  of  the  court  of  equity  to  appoint 
trustees  of  charitable  trusts. —  A  court  of  equity,  by  virtue 
of  its  jurisdiction  over  trusts  and  charities,  has  inherent  power 
to  appoint  trustees  in  the  case  of  every  valid  charitable  trust, 
where  the  testator  or  grantor  has  either  failed  to  designate  a 
trustee,  or  where  the  trustee  who  has  been  designated  refuses, 
neglects,  or  is  unable  to  carry  out  the  trust.  A  court  of  equity 
will  not  permit  a  charitable  trust,  which  in  itself  is  valid,  to 
fail  for  want  of  a  trustee.  In  this  respect  no  distinction  exists ' 
between  private  trusts  and  charitable  trusts.  If  the  testator 
creates  a  trust  for  a  charitable  purpose  which  is  definite  and 
valid,  and  the  objects  of  which  are  sufficiently  ascertained  and 
certain  as  a  class,  and  fails  to  nominate  a  trustee,  or  in  express 
terras  delegates  the  appointment  of  the  trustee  to  the  court, 
the  court  will,  on  the  application  of  the  proper  parties,  appoint 
a  trustee.  So,  also,  where  a  testator  has  given  property  to  an 
unincorporated  association,  or  where  he  has  in  his  will  directed 
that  a  charitable  corporation  shall  be  formed,  for  purposes 
Avhich  are  sufficiently  definite  and  certain,  and  has  made  no 
disposition  of  the  legal  interest  in  the  property  which  he  de- 
vises to  such  unincorporated  or  non-existent  institution,  the 
coiu't  will  appoint  a  trustee  who  is  capable  of  taking  and  hold- 
outlined  by  the  testator  was  entire  Third.  The  court  held  that  under 
and  inseparable,  covering  and  includ-  the  language  of  the  will,  giving  the 
ing  the  whole  residue  in  one  com-  trustees  power  to  devote  the  residue 
preliensive  disposition.  That  the  tes-  "  to  such  charitable,  educational  and 
tator  had  not  made  a  disposition  of  scientific  purposes  as  in  the  judg- 
his  estate  in  the  alternative  under  nient  of  my  said  trustees  will  render 
two  distinct  provisions,  one  primary  the  rest,  residue  and  remainder  of 
for  the  founding  of  the  Tilden  Trust,  my  property  most  widely  and  sub- 
and  an  ulterior  provision  of  a  sec-  stantially  beneficial  to  the  interest 
ondary  nature,  to  be  put  into  opera-  of  mankind,''  tlie  beneficiaries  are  in- 
tion  only  in  the  event  that  the  definite  and  uncertain,  and  that  con- 
trustees  named  by  him  should  deem  sequently  the  power  in  trust,  or  the 
it  inexpedient  to  convey  the  whole  trust,  as  the  case  may  be,  cannot  be 
residue  for  the  purposes  of  the  Tilden  enforced  by  a  court  of  equity.  The 
Trust.  devise  therefore  was  held  void  and 

Second.  Irrespective  of  the  char-  the  residue  devolved  upon  tiie  next 
acter  of  the  power  vested  in  the  of  kin  of  the  testator.  Tilden  v. 
trustees  to  select  a  beneficiary,  that  Green,  28  N.  E.  E.  880,  130  N.  Y.  29, 
is,  whether  it  was  a  valid  trust  with  29  N.  E.  R.  1033,  affirming  7  N.  Y. 
the  legal  title    in  the   trustees,   or    Supp.  382. 

simply  a  naked  power  to  select,  its        ^  Except  in  the  state  of  Xew  York, 
exercise  was  imperative.  §  843. 


§  s-^s.] 


KULES    KEGULATING    CHAKITABLE    GIFTS. 


12 


Oi 


ing  the  legal  title,  with  directions  to  cany  out  the  wishes  of 
the  testator. 

In  the  case  of  an  unincorporated  institution  the  trustee  will 
hold  the  legal  title  for  the  members  of  the  association,  or  for 
such  purposes  as  are  germane  to  the  association.^  "Where  the 
institution  is  to  be  incorporated  at  some  future  date,  the  trustee 
appointed  by  the  court  will  hold  the  legal  title  until  the  insti- 
tution shall  have  been  incorporated,  when  he  will,  under  the 
directions  of  the  court,  convey  it  to  the  institution.'-  The  ap- 
pointment of  a  trustee  by  the  court  should  be  surrounded  by 
such  safeguards  as  will  secure  the  appointment  of  a  proper 
person  to  the  office.  An  application  for  the  purpose  ought 
to  be  made  by  some  person  who  is  interested  in  the  enforce- 
ment of  the  trust,  in  connection  with  the  attorney-general  of 
the  state,  and  on  full  and  sufficient  notice  to  all  the  parties 
interested.^ 

So  if  the  testator  shall  devise  property  for  a  general  and 
definite  charitable  purpose,  and  shall  appoint  trustees  of  the 
fund,  conferring  on  them  full  discretion  to  select  the  objects 


J  See  cases  in  next  note. 

•JBull  V.  Bull,  8  Conn.  47;  Storr's 
School  V.  Whitney,  54  Conn.  345; 
Conklin  v.  Davis,  63  Conn.  377,  383; 
Grand  Prairie  Sem.  v.  Morgan,  49  N. 
E.  R.  510,  171  111.  444,  452;  Hoeffer  v. 
Clogan,  171  111.  402;  Seda  v.  Huble, 
75  Iowa.  429, 39  N.  W.  R.  685;  Preach- 
ers' Aid  Society  v.  Rich.  45  Me.  552; 
Swasey  v.  American  Bible  Soc,  57 
Me.  520;  Bliss  v.  Am.  Bible  Society, 
2  Allen  (Mass.).  334;  Winslow  v. 
Cumming.  3  Cush.  (Mass.)  558;  Minot 
V.  Baker,  147  Mass.  348,  353,  17  N.  E, 
R.  839;  Darcy  v.  Kelly,  153  Mass.  435, 
437,  26  N.  E.  R  110;  Schouier's  Peti- 
tion, 134  Mass.  426,  428;  Sears  v.  Cliaiv 
man,  158  Mass.  400,  401.  33  N.  K.  R. 
604;  Nortli  Adams  v.  Fitch,  8  (jlray 
(Mass.),  421;  Sanderson  v.  Wldte,  18 
Pick.  (Mass.)  328;  Mcl^iin  v.  Direct- 
ors, 51  Pa.  St.  100:  Mc(Jirr  v.  Aan-ii, 
1  P.  &  Watts  (Pju),  49;  Jolinson  v. 
Johnson,  92  Tenn.  559,  565;  Stone  v. 
(Jriflin,  3  Vt.  100;  (Jonhl  v,  A.syiiini, 
46   Wi.s.    100,    117;    .Ma.son   v.   M.   E. 


Church,  27  N.  J.  Eq.  47.  The  valid- 
ity of  the  testator's  delegation  of 
power  to  appoint  trustees  to  carry 
out  his  charitable  scheme  to  judges 
of  the  state  or  federal  courts  cannot 
now  be  questioned.  But  the  policy 
of  the  testator  in  thus  invoking  the 
aid  of  a  judge  of  wliom  he  know.s 
nothing  and  wdiom  he  has  never 
heard  or  seen,  and  who  may  appoint 
an  entire  stranger  to  put  into  opera- 
tion his  charitable  plans,  when  the 
latter  might,  on  the  other  hand,  com- 
mit their  execution  to  some  one  in 
his  personal  confidence,  may  well  be 
doubted.  The  fact  tliat  the  judges 
are  not  to  exercise  the  power  to  ap- 
jioint  a  trustee  until  lifteen  yeai-s 
after  tlie  testator's  dratii,  th«?  prt>|>- 
erty  mcanwliiie  being  vested  in  other 
trustees,  will  not  ren<ler  the  churita- 
lilegift  uncertain.  In  le  .Ji)hu(Oreg.), 
•17  Pac.  li.  311. 

■'(Jreen  v.  BI:i<Uwell  (N.  J.  K.|.),  3.> 
All.  R.  375. 


1233  LAW    OF    WILLS.  [§  S21>. 

of  the  charity,  and  to  specify  and  define  more  particularly  the 
purpose  of  the  gift;  in  other  words,  where  a  testator  confers 
power  upon  the  trustees  to  reduce  his  general  indefinite  and 
vaguely  described  purpose  to  a  proper  application  and  method, 
.-and  the  trustees  die  without  having  acted,  or  if  one  or  all  re- 
fuse to  act,  the  court  will  appoint  new  trustees  in  thoir  place. ^ 
And  if  the  trustee  of  the  property  to  be  disposed  of  in  his  dis- 
cretion dies  after  having  disposed  of  only  a  small  portion  of 
it,  the  remainder  will  be  applied  to  charitable  pur[)oses  indi- 
cated by  the  testator,  under  the  supervision  of  a  trustee  ap- 
pointed by  the  court  of  equity.^  So,  also,  where  the  action  of 
the  trustee,  in  the  distribution  of  the  trust  fund,  is  to  be  regu- 
lated by  the  request  of  another  person,  the  court,  upon  the 
neglect  of  the  third  person  to  act,  will  remove  him  and  appoint 
s.nother  in  his  place.^  But  on  the  other  hand,  where  it  clearly 
appears  from  the  language  of  the  Avill  that  the  discretionary 
power  which  was  placed  by  the  testator  in  a  trustee  was  a  mat- 
ter of  personal  confidence,  or  if  it  clearly  appears  that  his  dis- 
-eretion  was  not  only  as  to  the  mode  of  his  action,  i.  e.,  as  to 
how  much  or  how  little  he  should  distribute,  and  to  whom,  but 
that  his  discretion  included  the  decision  of  the  question  whether 
he  should  act  at  all  in  favor  of  a  charity,  or  whether  he  should 
■devote  the  fund  of  which  he  is  trustee  to  non-charitable  pur- 
poses, the  court  will  neither  compel  him  to  exercise  his  discre- 
tionary power  nor  appoint  a  new  trustee.* 

§  S39.  Charitable  gifts  to  institutions  wliicli  are  to  be  in- 
corporated in  the  future. —  At  the  common  law  in  England 
-every  grant  or  devise  of  land  was  invalid  unless  the  grantee 
or  devisee  was  a  natural  person,  or  a  corporation  in  esse  at  the 
«sdeath  of  the  testator.^  The  validity  of  a  devise  for  charitable 
purposes  to  a  corporation  which  is  to  be  created  in  the  future 
is  of  comparatively  modern  origin.  It  was  not  recognized  by 
the  English  courts  until  the  beginning  of  the  nineteenth  cen- 
tury.  Thus,  as  early  as  the  time  of  Henry  YI.,  it  was  laid 
down  that  a  devise  to  an  non-existent  college  was  void,  though 

>  Bull  V.  Bull,  8  Conn.  47;  Sawtelle  3  Appeal  of  Goodrich,  57  Conn.  275, 

V.  Witham  (Wis.,  1897),  69  N.  W.  R.  18  Atl.  R.  49. 

72.     Cf.  Dye  v.  Beaver  Creek  Church  <  Ante,  §  802. 

<S.  C,  1898),  26  S.  K  R.  717.  »  Co.  Lit.  55;  2  Black.  Com.,  p.  296. 

2Minot  V.  Baker,  147  Mass.  348,  17 
JS\  K  R.  839. 


§  S29.] 


EULES    KEGULATING    CHARITABLE    GIFTS. 


1239 


a  college  answering  to  the  description  employed  shall  subse- 
■quenth"  be  created  by  iwal  license.^  But  the  general  favor 
with  which  charitable  gifts  have  been  and  are  regarded  by  the 
courts,  particularly  the  courts  of  equity,  has  brought  about  a 
radical  change  in  this  rule  of  law.  The  authorities  now  gen- 
erally support  the  proposition  that  a  devise  to  a  charitable  cor- 
poration which  is  not  in  existence  at  the  death  of  the  testator^  but 
which  is  to  be  created  subsequently  by  the  legislature  in  ac- 
cordance with  the  charitable  plan  expressly  stated  in  his  Avill, 
is  not  void  because  of  indefiniteness  of  the  beneficiary.  But 
this  rule  must  be  taken  with  the  limitation  that  tlie  testator 
shall  not  have  devised  an  interest  in  the  legal  title  to  the  land 
to  some  person  or  persons  to  hold  until  the  charitable  institu- 
tion shall  come  into  existence,  in  such  manner  and  on  such 
terms  that  an  illegal  suspension  of  the  power  of  alienation  is 
created  which  is  to  endure  for  a  longer  period  than  is  per- 
mitted by  the  rule  against  perpetuities."^     Such  devises  of  funds 


'  See  Cholmley's  Case,  2  Rep.  51a; 
Lane  v.  Co\vper,  Moor.  104;  Noe's 
Case,  Winch,  55:  Simpson  v.  South- 
ward, 1  RoL  R.  254,  and  the  remarks 
of  Judge  Sharswood  in  the  case  of 
Zeissweiss  v.  James,  63  Pa.  St.  465, 
where  property  was  devised  to  an 
unincorporated  society  for  the  propa- 
gation of  infidel  teacliings,  with  a 
proviso  that  it  should  be  incori)o- 
rated.  The  court,  after  stating  tliat 
under  the  existing  statutes,  and  in 
view  of  the  aversion  with  which 
the  propagation  of  infidelity  was  re- 
garded by  the  law,  it  was  extremely 
improbable  that  such  a  society  would 
ever  be  incorporated,  held  the  devise 
void  as  being  too  remote,  comparing 
it  to  a  devise  of  a  possibility  upon  a 
I)r)ssibility,  and  to  a  gift  of  a  re- 
mainder to  tlie  lioirs  of  a  ixirson  un- 
born. 

^  Milne  v.  Milne,  17  La,  (O.  S.)  40; 
Dascomb  v.  Martin,  13  At!,  li.  838,  80 
Me.  232,  233;  Nason  v.  Church,  60 
:^Ie.  100;  Sewall  v.  Cargill.  15  Me.  414; 
Swasey  v.  Aiiifrican  Hilile  Society, 
57  Me.  526;  Cliaso  v.  St(jckett,72  Md. 


235,  19  Atl.  R.  781  (by  act  Md.,1883, 
ch.  249);  Longheed  v.  Dykeman's  Bap- 
tist Church,  12  N.  Y."  Supp.  207,  58 
Hun,  364,  29  N.  E.  R.  249;  N.  Y. 
American  B.  Soc.  v.  American  Col- 
onization Soc,  50  Hun,  194,  2  N.  Y. 
Supp.  774;  In  re  Teed,  59  Hun.  642, 
12  N.  Y.  Supp.  642;  Dammert  v.  Os- 
born,  140  N.  Y.  30,  35  N.  E.  R.  407; 
Pennoyer  v.  Wadhams,  20  Oreg.  274, 
25  Pac.  R.  720;  In  re  Lewis'  Estate, 
11  Pa.  Co.  Ct.  R.  501;  In  re  Peper's 
Estate,  154  Pa.  St.  331,  25  Atl.  R. 
1058;  Appeal  of  Mercantile  Library 
Co.,  54  Pa.  St.  331,  25  Atl.  R.  1058; 
Zimmerman  v  Anders,  6  Watts  &  S. 
(Pa.)  218;  Johnson  v.  Jolmson,  92  Tenn. 
559,  565;  Dodge  v.  Williams,  50  N. 
W.  R.  1103,  40  Wis.  70;  Field  v. 
Drew  Theology  Seminary,  41  Fed.  R. 
371;  Hayes  v.  Pratt.  13  Sup.  Ct.  503, 
117  U.  S.  557.  Cf.  (Jerman  Prot. 
Home  for  Aged  v.  llanlii',  43  r^a.  Ann. 
251,9  S.  R.  12.  In  tlio  state  of  Maine, 
a  gift  to  the  first  gospel  minister  who 
hliall  Kcttie  in  A.  was  held  to  bo 
valid-  Sliapleigli  v.  I'illsbury,  1  Mo. 
271. 


1240  LAW   OF   WILLS.  [§  829. 

or  lands  to  persons  named,  wliich  are  to  be  hy  them  devoted  at 
some  future  time  to  the  foundation  and  maintenance  of  char- 
ital.)le  institutions,  are  not  to  be  regarded  as  executor}"  future 
gifts  to  the  institutions  which  are  to  be  created,  but  as  present 
vested  devises  of  the  legal  estate  in  the  jiroperty  mentioned,  to 
the  persons  who  are  expressly  or  by  implication  made  trustees. 
Such  persons  have  a  present  vested  title  in  the  trust  for  the 
future  charitable  corporation,  and  the  future  corporation,  when 
created,  does  not  take  the  legal  title  to  the  property  under  the 
Avill  of  the  testator,  but  by  a  conveyance  of  the  property  from 
the  trustees  named  by  him.^  In  those  states  where  the  common- 
la^v  rule  of  perpetuities  has  been  abolished,  and  where  it  is 
illegal  to  suspend  the  power  of  alienation  for  more  than  two 
lives  in  being,  as  in  the  case  of  IS'ew  York,  a  devise  to  trustees 
to  be  at  some  future  date  conveyed  to  a  corporation  to  be  or- 
ganized is  invalid,  if  the  duration  of  the  trust  is  longer  than 
two  lives  in  being  at  the  death  of  the  testator.  But  in  such 
states  a  devise  which  is  to  vest  in  a  religious  organization,  after 
the  termination  of  a  life  estate,  is  valid  though  the  corporation 
was  not  in  existence  at  the  death  of  the  testator,  provided  it 
became  incorporated  during  the  life  of  the  life  tenant.- 

1  Gould  v.  Taylor  Orphan  Asylum,  N.  Y.  Supp.  817.  In  Iowa  it  seems 
50  N.  W.  R.  422.  46  Wis.  106.  A  that  a  devise  to  a  corporation  to  be 
devise  of  a  residue  in  trust  after  the  organized  is  invalid.  Bond  v.  Home 
payment  of  debts  and  pecuniary  leg-  for  Aged  Women  (Iowa),  62  N.  W^  R. 
acies,  "  for  the  purpose  of  founding  838.  In  Maryland  a  devise  to  a  cor- 
and  supporting,  or  uniting  in  the  poration  to  be  incorporated  in  the 
support  of  any  institution  that  may  future  is  valid  by  statute,  provided 
be  then  founded,  to  furnish  a  retreat  the  loill  contains  directions  for  in- 
and  home  for  disabled  or  aged  and  eorporating  the  same,  but  not  other- 
infirm  and  deserving  American  me-  wise.  Tingling  v.  Miller,  77  Md.  104, 
chanics,"  is  undoubtedly  valid,  and  20  Atl.  R.  491.  A  bequest  in  trust  to 
has  been  held  so  by  tlie  supreme  a  church,  to  use  and  apply  the  in- 
court  of  the  United  States,  though  come  therefrom  for  church  purposes, 
the  corporation  to  which  the  trustees  will  be  upheld,  and  a  trustee  ap- 
devoted  the  fund  was  not  incorpo-  pointed  to  administer  the  trust, 
rated  until  after  the  death  of  the  tes-  though  such  church  at  the  time  of 
tator.  Hayes  v.  Pratt,  13  Sup.  Ct.  tlie  death  of  the  testator  and  at  the 
503,  147  U.  S.  557.  time  of  the  probate  of  the  will  was 

-  Longheed  v.  Dykeman's  Baptist  an  unincorporated  body.     St.  Peter's 

Church,  58  Hun,  364,  12  N.  Y.  Supp.  Ciiurch  v.  Brown,  43  AtL  R  042  (R.  L, 

207,  affirmed  in  29  N.  E.  R.  249;  Ply-  1899). 
mouth  v.  Hepburn,  57  Hun,  161,  10 


§  830.] 


EULES    REGULATING    CHAEITABLE    GIFTS. 


1241 


§  830.  The  validity  of  charitable  gifts  to  unincorporated 
and  voluntary  societies. —  By  a  well  known  and  ancient  rule  of 
the  common  law,  a  gift  or  grant  of  land  to  an  unincorporated 
society  is  Yoid.^  The  grantor  must  name  some  definite  and 
ascertainable  person,  either  natui-al  or  artificial,  who  is  capable 
of  being  seized  of  the  legal  title  to  the  land.  The  grantee  must 
be  in  existence,  and  must  be  some  individual  or  corporation 
who  is  capable  of  having  livery  of  seizin.  By  the  action  of 
courts  of  equity  in  both  England  and  in  the  United  States  this 
rule  is  generally,  though  not  universally,  held  inapplicable  to 
devises  and  gifts  for  charities  and  for  public  purposes  gener- 
ally. In  this  country,  in  a  very  early  case,  a  grant  to  the  in- 
habitants of  a  town,  being  unincorporated,  was  held  valid.-  And 
this  rule  has  been  followed  in  nearly  all  of  the  states  in  which 
this  question  has  arisen.''  Hence,  we  may  safely  say  that  chari- 
table devises  to  the  inhabitants  of  an  unincorporated  commu- 
nity, to  clubs  and  unincorporated  societies  are  not j9e/'  se  invalid, 
and  that,  if  necessary,  a  trustee  will  be  appointed.* 


1  Ante,  %  829. 

spawlet  V.  Clark,  9  Cranch  (U.  S.), 
292. 

3  Williams  v.  Pearson,  38  Ala.  299; 
Chatham  v.  Brainard,  11  Conn.  60; 
American  Bible  Soc.  v.  Wetmore,  17 
Conn.  181;  McCord  v.  Ochiltree,  8 
Blackf.  (Ind.)  13;  Byers  v.  McCart- 
ney, 62  Iowa,  339,  17  N.  W.  R.  371; 
Seda  V.  Huble.  75  Iowa,  428,  430,  39  N. 
W.  R.  685  (unincorporated  church); 
Preachers'  Aid  Soc.  v.  Rich.  45  Me. 
552;  Everett  v.  Carr,  59  Me.  325; 
Sohier  v.  St.  Paul's  Church.  12  Met. 
(Mass.)  250,  561;  Sears  v.  Cliapnian, 
158  Mass.  400,  33  N.  E.  R.  604:  Wasli- 
burne  v.  Sewall,  9  Met.  (Mass.)  2M0, 283; 
Bartlett  v.  Nye,  4  Met.  (Mass.)  378, 
379;  Burbank  v.  Wiiitney,  24  Pick. 
(Ma.ss.)  146;  Eutaw  Place  Clmrch  v. 
Shively,  67  Md.  490,  10  Atl.  R.  244  (to 
a  Sunday  srhool);  Ticknor's  Estate, 
13  Mich.  44.  .56;  Parker  v.  Cowell.  16 
N.  H.  149;  Succession  of  Vance,  39 
J^-u  Ann.  371,  2  S.  li.  .54;  Ilad.i.-n  v. 
Dandy,  51  N.  J.  Ecj.  154,  26  Atl.  R 
464- 


4  In  Xew  York  the  decisions  are 
not  harmonious.  Some  cases  sustain 
the  text;  others  wholly  repudiate  it. 
The  following  sustain  it:  In  re  Bul- 
lock. 6  Dejn.  Sur.  335;  McCartee  v. 
Orphan  Asylum.  9  Cow.  (N.  Y.)  484; 
Potter  V.  Chapin,  6  Paige  (N.  Y).  649, 
650;  In  re  Owens,  33  N.  Y.  Supp.  422, 
24  N.  Y.  Civil  Pro.  R  256;  Vander- 
bolgen  V.  Yates,  3  Barb.  Ch.  (N.  Y.) 
242;  Hornbeck  v.  American  B.  Soc, 
2  Sandf.  Ch.  133;  Banks  v.  Phelan,  4 
Barb.  80.  See  contra,  Owens  v.  Mis- 
sionary Society,  14  N.  Y.  380;  Down- 
ing V.  ]\Iarshall.  23  N.  Y.  9.  See  also 
as  sustaiiung  the  text,  Mclntire  v. 
Zanesville  C.  &  M.  Co.,  9  Ohio,  203; 
American  Tract  Soc.  v.  Atwater,  30 
Oiiio  St.  77;  Zimmerinjin  v.  Anders, 
6  Watts  &  S.  (Pa.)  218;  Pickering  v. 
S'lotwell,  10  Piu  St.  23;  Ai)p("al  of 
Evangelical  A.s.sociation,  35  I'a.  St. 
31(!;  Hcthlchcni  v.  Perseverance  Co., 
81  Pa.  St.  115;  Dye  v.  Beaver  Creek 
Clmrch,  26  S.  E.  R.  717;  Bates  v. 
Taylor,  2H  S.  C.  476,  6  S.  E.  R  .327; 
Siiiilii    v.    Nel.son,    \H  Vt.   511;    (lib- 


1242 


LAW    OF    Wir.LS. 


[§  830. 


In  some  of  tlie  states  a  devise  to  a  voluntary  or  im incorpo- 
rated society  for  charitable  purposes  is  invalid.  This  is  the  rule 
in  Minnesota,^  Indiana,-  Maryland,'  Tennessee,''  Texas,'^  Wiscon- 
sin," and,  according  to  the  most  recent  cases,  in  the  state  of  ]^ew 
York.^ 

A  devise  of  land  to  a  branch  of  the  Salvation  Army,  which 
is  an  unincorporated  voluntary  association,  whose  membership 
is  constantly  in  a  fluctuating  state,  is  invalid.  But  where  a  stat- 
ute^ provides  for  the  legal  incorporation  of  unincorporated 
churches,  the  branch  may,  within  a  reasonable  time,  become 
incorporated  and  take  land  devised  to  it  for  religious  purposes.'' 
And  where  a  devise  to  an  unincorporated  society  is  void 
because  of  the  incapacity  of  the  society  to  take  on  account  of 
its  lack  of  corporate  capacity,  it  cannot  be  validated  merely 
because  the  property  is  given  in  trust  for  such  society,  nor  can 
a  court  of  equity  appoint  a  trustee  for  such  an  unincorporated 
organization  w^here  the  testator  has  given  property  to  it  di- 


son  V.  McCall,  1  Rich.  (S.  C.)  Law, 
174;  Burrs  Ex'r  v.  Smith,  7  Vt. 
241;  Smith  v.  Nelson,  18  Vt,  511; 
Mong  V.  Roush,  29  W.  Va,  119;  Fad- 
ness  V.  Braunborg,  73  Wis.  257,  41 
N.  W.  R.  84;  Hopkins  v.  Grimes,  17 
Sup.  Ct.  401;  Beatty  v.  Kurtz,  2  Pet. 
(U.  S.)  583.  A  trust  for  a  well  known 
religious  community,  as  the  Society 
of  Friends,  has  been  held  valid.  Dex- 
ter V.  Gardner,  7  Allen  Olass.),  243. 
In  the  case  of  Inglis  v.  Trustees  of 
Sailors'  Snug  Harbor,  3  Peters  (U.  S.), 
99,  a  trust  created  by  a  devise  to  the 
chancellor,  mayor  of  New  York,  re- 
corder and  others  (afterwards  incor- 
jjorated)  for  the  purpose  of  founding 
a  Home  for  Aged  Seamen  was  held 
valid. 

1  Society  v.  Moll,  51  Minn.  277,  53 
N.  W.  R.  648.  "To  those  members  of 
the  society,  etc.,  now  under  my  con- 
trol and  subject  to  my  authority." 
Lane  v.  Eaton,  71  N.  W.  R.  1031 
(Minn.). 

2  Grimes  v.  Harmon,  35  Ind.  246, 
where  the  gift  was  to  "  the  Protestant 


clergymen  "  of  a  certain  town.     But 
other  cases  in  this  state  are  contra. 

3  State  v.  Warren,  28  Md.  338.  In 
this  case  the  court  said:  "As  a  gen- 
eral rule  it  is  clear  that  a  bequest  or 
devise  to  an  unincorporated  associa- 
tion is  void,  and  it  is  only  by  virtue 
of  that  peculiar  jurisdiction,  exer- 
cised b}-  courts  of  chancery  in  re- 
gard to  charitable  uses,  that  such  be- 
quests ever  have  been  sustained." 

4  Wliite  V.  Hall.  2  Coldw.  (Tenn.)77; 
Rhodes  v.  Rhodes,  88  Tenn.  637,  13  S. 
W,  R.  590. 

5  Nolte  V.  :Meyer,  79  Tex.  351.  15  S. 
W,  R,  276,  which  was  a  case  of  a  de- 
vise "to  the  German  citizens  com- 
prising the  neighborhood." 

("Heiss  V.  Murphey,  40  Wis.  276; 
Ruth  V.  Oberbrunner,  40  Wis.  238. 

'White  V.  Howard,  46  N.  Y.  144; 
Owens  V.  Missionary  Society,  14  X.  Y. 
380;  Downing  v.  Marsliall,  23  N.  Y.  366. 

8  Minn.  Gen.  St.  1894,  ch.  34,  tit.  4. 

9  Lane  v.  Eaton  (Minn.),  71  N.  W.  R. 
1031.  See  also  Minn.  Gen.  St.  1894, 
ch,  43,  sec.  4274 


§  831.]  ECLES    EEGULATIXG    CHARITABLE    GIFTS.  1243 

rectlj.^  A  devise  to  a  Sunday  school  may  be  invalid,  at  least 
in  those  jurisdictions  where  it  is  held  that  testamentary  gifts 
to  unincorporated  associations  are  invalid.  But  in  recent  cases, 
where  a  testator  gave  money  to  an  incorporated  church  "  to  be 
applied  to  the  Sunday  school  belonging  or  attached  to  it,"  and 
it  was  shown  that  the  school  was  an  integral  part  of  the  church, 
the  gift  was  upheld  as  sufficiently  certain  as  respects  the  bene- 
ficiary.- 

§  831.  Misnomer  in  the  case  of  gifts  to  charitable  institu- 
tions.—  If  the  description  of  a  charitable  institution,  which  is 
a  legatee  in  the  will,  accurately  fits  one  claimant  in  every  par- 
ticular, it  is  never  permissible  to  endeavor  to  prove  by  parol 
evidence  that  another  institution  claiming  it,  which  it  does  not 
accurately  dcscrihe,  was  intended  by  the  testator.'  On  the  other 
hand,  the  fact  that  no  charitable  institution  is  in  existence 
which,  by  its  legal  and  corporate  name,  answers  in  every jpar- 
ticular  to  the  description  of  the  charitable  institution  which  is 
named  as  a  legatee  in  the  will,  never  alone,  in  modern  times 
at  least,  renders  the  legacy  void  for  uncertainty.  If  the  leg- 
atee is  inaccurately  named  or  imperfectly  described,  and  the 
property  disposed  of  is  claimed  by  several  institutions,  no  one 
of  which  answers  in  every  particular  to  the  description,  but 
two  or  more  of  which  answer  in  one  or  more  particulars,  it  is 
the  duty  of  the  court  to  construe  the  will  in  order  to  ascertain 
which  corporation  was  intended.  The  court  has  a  right  to 
the  aid  of  parol  evidence  under  these  circumstances,  as  well  as 
the  b"frht  which  may  be  afforded  bv  the  context:  and  if,  with 
these  aids,  the  court  is  able  to  ascertain  which  charitable  in- 
stitution of  several  was  intended,  the  misnomer  will  not  de- 
feat the  gift.''     As  tending  to  identify  the  corporation  whore  a 

1  Rhodes  v.  Rhodes.  88  Tenn.  C;J7,  l:}  *  In  re  Gibson,  75  Cal.  829,  17  Par. 
S.  AV.  R.  MO.  Cf.  Nance  v.  Buzhy  R.  4:J8;  Bristol  v.  Orphan  Asylum,  (10 
(Tenn.),  18 S.  W.  R.  874;  Seda  v.  Huble,  Conn.  472  (a  Rift  to  tlie  "  Cananthii- 
75  Iowa,  429,  39  N.  W.  R  G85.  gua  Orplian  Asylum."  taken  by  the 

2  Eutaw  Place  Baptist  Church  of  "Ontario  Ori)han  Asylum");  Cros- 
Baltirnore  City  v.  Shively,  67  ^Id.  49:{,  grove  v.  Crosgrove,  38  Atl.  R.  219,  09 
10  Atl.  R  244:  Conklin  v.  Davis,  03  Conn.  410;  Ayre.s  v.  Mead,  10  Conn. 
Conn.  377,  28  All,  R  537.  291;  American  B.  Soc.  v.  AVctmore, 

'Tucker  v.  Seaman's  Aiil  Society,  17  Conn.  IHl;  (Joodricii's  ,\p|it'al,  '^1 

7  Met  (Mass.)  INH;  In  re  .leano's  Eti-  Coim.  275,  18  Atl.  H.  49;  Dovighten  v. 

tate,  3  Pa.   Dist.  R  314.  34  VV.  Ni  C.  Viiiid.ver.5  Del.  Ch.  51  (d.'vise  to  "tho 

190.     See  also  ivmt,  '%  910.  ()r|.h;iii  Asyliiiii..!  I'liila<lclphia,"  tiio 


1'2U 


LAW    OF    WILLS. 


[§  831. 


devise  is  claimed  by  two  or  more  institutions,  none  of  which 
answers  in  its  corporate  name  precisely  to  the  phraseology  of 
the  will,  it  may  be  shown  that  the  testator  knew  of  the  exist- 
ence of  one  of  the  societies,  though  he  may  not  have  known  its 
corporate  name.^  The  fact  that  ho  received  the  report  of  the 
society  shortly  before  the  execution  of  the  will ; '  tliat  he  had 

"Widows'  Asylum,"  and  the  "Ma- 
rine Society."  taken  by  the  "Orphan 
Society  of  Philadelphia."  "Indigent 
Widows'  and  Single  Women's  So- 
ciety "  and  the  "  Pennsylvania  Sea- 
men's Friends  Society");  Bradley  v. 
Pees.  113  111.  ;5;5'2;  Decker  v.  Decker, 
121  111.  341,  12  N.  E.  R.  750:  Women's 
Union  Miss.  Society  v.  Mead,  131  111. 
33;  Craig  v.  Sechrest,  54  Ind.  420; 
Preachers'  Aid  Soc.  v.  Rich,  45  Me. 
552;  Howard  v.  American  P.  Soc,  49 
id.  288,  297;  Hazeltine  v.  Vose  (Me.), 
14  Atl.  R  733;  Winslow  v.  Gum- 
ming, 3  Cush.  (Mass.)  358;  Minot  v. 
Orphan  Asylum,  7  Met.  (IMass.)  416; 
Sutton  V.  Cole,  3  Pick.  (Mass.)  232; 
Trustees  v.  Peaslee,  15  N.  H.  317  (de- 
Tise  to  "  Franklin  Seminary  of  Lit- 
erature and  Science,  Newmarket," 
to  "  trustees  of  the  South  Newmar- 
ket Methodist  Seminary  ") ;  Smith  v. 
Kimball,  62  N.  H.  006;  Society  v. 
Hatch,  48  N.  H.  393;  Chappell  v.  Mis- 
sionary Society,  3  Ind.  App.  356; 
Moore  v.  J\Ioore,  50  N.  J.  Eq.  554,  25 
Atl.  R.  413:  Baldwin  v.  Baldwin,  3 
Halst.  (N.  J.)  Eq.  211;  Hornebeck  v. 
Amer.  Bible  Soc.  2  Sandf.  (N.  Y.)  Ch. 
133  (in  this  case  the  gift  was  "to 
Am.  Bible  Soc.  Tract,  Synods  Board 
of  Missions  Domestic  Missions, 
N.  Y.  Colonization  and  Seamen's 
Friends");  Banks  v.  Phelan,  4  Barb. 
(N.  Y.)  80;  Lefevre  v.  Lefevre,  59 
N.  Y.  434;  Kimball  v.  Chappell,  18 
N.  Y.  S.  30,  27  Abb.  N.  C.  437;  Wet- 
more  V.  N.  Y.  Institute  for  the  Blind, 
3  N.  Y.  Supp.  179;  Gray  v.  Mission- 
ary Society,  2  id.  878:  Sheldon  v. 
Cliappell,  47  Hun,  .59;  Tilley  v.  Ellis 
(N.  C),  26  S.  E.  R  29;  Ne well's  Ap- 
peal, 24  Pa.  St.  197  (gift  to  "trustees 


who  hold  the  funds  of  the  Theol. 
Sem.  at  Princeton,"  given  to  "  trust- 
ees of  the  Theological  Seminaiy  of 
the  Presbyterian  Church  at  Prince- 
ton"); Wood  V.  Hammond,  16  R  I. 
98,  17  Atl.  R  324;  Cady  v.  Hospital, 
17  R  I.  207,  21  Atl.  R.  365  (a  devise 
to  the  "  Children's  Nursery,"  given  to 
the  "Rhode  Island  Children's  Hospi- 
tal and  Nursery");  Peckham  v. 
Newton,  4  Atl.  R  758,  15  R  I.  321  (a 
gift  to  "  Home  for  the  Aged  in  New- 
port "  to  the  "  Townsend  Aid  for  the 
Aged"):  Fierson  v.  Genu.  Ass.  Pres. 
Ch.,  7  Heisk.  (Tenn.)  683;  Button  v. 
American  T.  Soc.  23  Vt.  336;  McAl- 
lister V.  McAllister.  46  Vt.  272:  Ver- 
mont Baptist  State  Convention  v. 
Ladd,  9  Atl.  R  1  (Vt.)  (a  devise  to  the 
"Vermont  State  Convention"  given 
to  the  plaintiff);  The  General  Ass. 
Pres.  Ch.  v.  Guthrie.  86  Va.  12.5,  10 
S.  E.  R  318;  University  v.  Tucker,  31 
W.  Va.  621,  8  S.  E.  R  410;  Ross  v. 
Kiger  (W.  Va.).  26  S.  E.  R  193;  Web- 
ster V.  Morris,  66  Wis.  366,  379,  381; 
Kilvert's  Trusts,  L.  R  12  Eq.  (1871), 
183;  Alchin's  Trust,  L.  R  14  Eq.  230 
(where  a  gift  to  the  K.  County  Hos- 
pital was  divided  between  two  hos- 
pitals as  nearly  answering  the  de- 
scription); Attorney -General  v.  Rye, 
1  J.  B.  Moo.  267,  7  Taunt.  546:  Queen'.s 
College  V.  Sutton,  12  Sim.  521;  Brad- 
shaw  V.  Thompson,  2  Y.  &  C.  C.  C. 
295;  Wilson  v.  Squier,  1  id.  654; 
Smitli  v.  Ruger,  5  Jur.  (N.  S.)  905. 

1  Woman's  Union  ]\Iissionary  Soc. 
V.  Mead,  131  111.  33,  23  N.  E.  R  603; 
Howard  v.  American  Tr.  Soc,  49  Me. 
296:  Button  v.  Society,  23  Vt.  336. 

-  Wetmore  v.  Institution,  3  N.  Y. 
Supp.  179. 


§  831.]  KrLES    KEGULATIXG    CUAKITABLE    GIFTS.  1245 

very  frequently  expressed  an  interest  in  its  work,^  and  that  bo 
bad  stated  tbat  be  would  leave  a  legacy  for  tbe  cause  repre- 
sented by  it ;  -  tbat  be  bad  been  one  of  tbe  founders  of  tbe  so- 
ciety or  one  of  its  officers  r"*  and  bad  been,  during  bis  life, 
eitber  a  regular  or  an  occasional  subscriber  to. its  support;  ^  and 
tbat  tbe  cburcb  to  Avbicb  be  belonged,  or  wbicli  be  attended, 
took  up  collections  for  it  at  regular  intervals,  is  relevant.^ 

AVbere  tbe  will  contained  a  direction  to  divide  tbe  residue 
equally  between  "tbe  Board  of  Foreign  and  tbe  Board  of  Home 
Missions,"  and  it  appeared  tbat  several  different  religious  de- 
nominations bave  sucb  boards,  parol  evidence  was  received  to 
sbow  tbat  tbe  testator  meant  tbose  of  tbe  Presbyterian  cburcb. 
It  was  permissible  to  prove  that  be  was  an  elder  of  tbe  Pres- 
byterian cburcb,  tbat  be  bad  taken  special  interest  in  tbe  work 
of  sucb  boards,  and  luid  contributed  to  it  but  not  to  otber  for- 
eign or  home  mission  work.  Tbe  court  also  took  into  consid- 
eration tbat  in  anotber  clause  of  tbe  will  be  bad  left  money  to 
tbe  Presbyterian  cburcb.^  So,  wbere  several  societies  claimed 
a  bequest  to  "  tbe  Sailors'  Home  in  Boston,"  and  tbere  were 
several  Homes,  one  of  wbicb  bad  been  partly  maintained  by 
tbe  Baptist  cburcb,  it  is  relevant  to  show  that  tbe  testator  was 
prominent  in  tbe  Baptist  church,  knew  of  the  work  carried  on 
Ijy  this  denomination  in  behalf  of  the  sailors,  and  was  inter- 
ested in  a  Baptist  church  which  was  represented  in  the  man- 
agement of  tbe  society  in  question.'^ 

1  Button  V.American  Tract  Soc,  Me.  288;  Tallman  v.  Tallman.  .sj/yira; 

2.3  Vt.   349;    General    Assembly    v.  Bristol  v.  Ontario  Orphan  Asylum. 

Guthrie,  8G  Va.  12.1,  10  S.  E.  R  318.  60  Conn.  472,  22  Atl.  R.  848;  Chappell 

-  Wetmore  v.  Institution,  stipra.  v.  Missionary  Soc,  3  Intl.  App.  3 jG, 

3  "Woman's    Union    Miss.    Soc.    v.  29  N.  E.  R.  924. 

MeaJ,  infra;  Riker  v.  Beo,  1  N.  Y.  S.  « Gilmer  v.  Stone,  7  S.  Ct.  G89,  120 

128,  133  N.  Y.  519,  30  N.  E.  R.  598.  U.  S.  58G. 

*  Woman's  Union  Miss.  Soc.  v.  'Faulkner  v.  National  Sailors' 
Mead.  131  111.  33.  23  N.  E.  R.  G03;  Fi-  Home,  155  Mass.  458.  29  N.  E.  R.  G45. 
field  V.  Van  Wyck,  27  S.  E.  R.  40;  The  rule  in  England  is  that  where  a 
Tallman  v.  Tallman,  23  N.  Y.  Siipp.  hetjuest  for  charitable  purposes  is 
734,3  Misc.  li.  405;  American  Bible  claimed  by  .several  institutions,  none 
8<^x:.  V.  Wetmore,  17  Conn.  1  HO;  W(x>d  of  which  i)reci.sely  corresponds  to 
V.  Hammond,  10  R.  I.  98,  17  Atl.  R.  the  description  in  every  particular, 
324;  hi  re  Bennij,'.  154  Pa.  .St.  209,  25  that  the  i)ropfrty  shall  be  e.pialiy  di- 
Atl.  R.  1049;  Kilv.rt's  Trust,  L.  R.  7  vid«><l  amoiiK  them.  Waller  v.  ( •Jiilds 
Ch.  170.  (1705),    Amb.    521;     In     re    Alchin's 

*  Howard  v.  American  l'euceSoc.,49  Trusts,   1..    K.   11   Iai   230;   In  re  S(y- 


124G 


LAW    OF    WILLS. 


[§  83^. 


§8.32.  riiarital)le  l)e(]|uests  to  executors  or  trustees  with 
a  (lelej^jitiou  of  power  to  select  tlie  iustitutious  or  objects 
wliich  are  to  lie  beuefited. —  In  most  of  the  stutos,  as  well  as 
in  England,  the  rule  is  settled  that  the  testator  may  delegate 
to  others  the  power  of  selecting  those  corporations  or  persons 


clety,  2  Kee.  &  J.  615;  Bennett  v. 
Hayter,  2  Beav.  81,  84,  in  which  case 
the  bequest  was  for  the  benefit  of 
"poor  dissenters."  As  there  were 
three  sorts  of  dissenters  in  Engh^nd 
at  tliat  time,  Baptists,  Presbj-terians 
and  Independents,  the  court  ordered 
the  fund  to  be  divided  equally  among 
t!iem.  "A  misnomer  or  misdescri]> 
tion  of  a  legatee  or  devisee,  wliether 
a  natural  person  or  a  corporation, 
will  not  invalidate  the  provision  nor 
defeat  the  intention  of  a  testator,  if, 
either  from  the  will  itself  or  evi- 
dence dehors  the  will,  the  object  of 
the  testator's  bounty  can  be  ascer- 
tained. No  principle  is  better  set- 
tled than  that  parol  evidence  is 
admissible  to  remove  latent  ambigu- 
ities; and  where  there  is  no  person  or 
corporation  in  existence  precisely 
answering  to  the  name  or  descrip- 
tion in  the  will,  parol  evidence  may 
be  offered  to  ascertain  who  was  in- 
tended by  the  testator.  A  corpora- 
tion may  be  designated  by  its  corpo- 
rate name,  or  by  the  name  by  which 
it  is  usually  or  popidarly  called  and 
known,  by  a  name  b}'  which  it  was 
known  and  called  bj"  the  testator,  or 
by  any  name  or  description  by 
which  it  can  be  distinguished  from 
every  other  corporation;  and  when 
any  but  the  corporate  name  is  used, 
the  circumstances  to  enable  the 
court  to  apply  the  name  or  descrii> 
tion  to  a  particular  corporation  and 
identify  it  as  the  body  intended,  and 
to  distinguish  it  from  all  others  and 
bring  it  within  the  terms  of  tiie 
will,  may  in  all  cases  be  proved  by 
parol.  ...  As  said  by  the  court 
in  Minot  v.  Curtis,  7  Mass.  441,  'there 
is  no  reason  why  corporations  may 


not  be  known  by  several  names  as 
well  as  individuals.'  and  if  so,  and 
named  in  a  grant  or  devise  by  any 
one  of  its  recognized  names,  it  can- 
not be  said  tliat  the  name  is  wholly 
mistaken.  The  ambiguity  arises 
only  from  the  fact  that  the  corpora- 
tion has  and  bears  two  or  more 
names.  The  corporate  or  cliarter 
name  may  be  wholly  mistaken  or 
unknown  to  the  testator,  but  if  he 
designates  it  by  some  other  name  by 
Avhich  it  is  known  and  can  be  identi- 
fied, the  will  must  have  effect  ac- 
cording to  the  intention  of  the  tes- 
tator. A  mistake  in  the  name  is  not 
fatal  so  long  as  the  testator  suffi- 
ciently indicates  the  institution  or 
individual  intended."  Remarks  of 
Allen,  J.,  in  Lefevre  v.  Lefevre,  59 
N.  Y.  434,  440.  The  fact  that  a  cor- 
poration named  as  a  legatee  for  char- 
itable purposes -has  changed  its  name 
before  the  execution  of  the  will  does 
not  invalidate  the  bequest,  particu- 
larly wliere  the  change  of  name  is 
not  known  to  the  testator.  The  evi- 
dence must  show  that,  whatever 
may  be  its  name,  the  institution 
claiming  the  bequest  is  the  one  in- 
tended by  the  testator.  Elnell  v. 
Universalist  General  Convention,  76 
Tex.  514,  13  S.  W.  R.  552;  Trustees, 
etc.  Methodist  Seminary  v.  Peaslee, 
15  N.  H.  317.  In  the  latter  case  the 
testator,  a  Methodist  clergyman,  be- 
queathed money  to  the  Franklin 
Seminary  of  Literature  and  Science 
at  Newmarket,  N.  H.,  wliich  was  tlio 
only  public  school  in  the  town,  and 
was  under  the  control  of  the  Meth- 
odist church.  Before  the  execution 
of  the  will  the  name  of  this  institu- 
tion had  been  changed  to  '"  The  Trus- 


§  832.]  KULES    KEGULATIXG    CHAEITABLE    GIFTS.  ll'iT 

that  are  to  be  the  recipients  of  his  bounty  in  the  case  of  a  char- 
itable gift.  The  cases  which  have  arisen  under  this  head  of 
charitable  trusts  may  be  divided  into  two  classes.  First^  where 
the  charitable  purpose  stated  in  the  will  is  reasonably  clear, 
definite  and  certain,  though  the  testator  has  left  it  to  his  exec- 
utors to  select  the  institution  by  which  his  purpose  is  to  be  car- 
ried out,  and,  at  the  same  time,  has  expressly  directed  that  his 
intention  shall  be  carried  out  through  and  under  the  control  of 
some  existing  charitable  corporation.  Such  cases  arise,  for  ex- 
ample, w^here  the  testator  gives  money  to  a  Eoman  Catholic 
bishop  to  be  "used  for  the  Eoman  Catholic  institutions  of  his 
diocese,"^  or  directs  the  executors  of  the  will  to  distribute  a 
residue  "among  charitable  institutions  similar  to  those  men- 
tioned by  me  in  my  wnll,"^  or  directs  them  to  "distribute 
money  among  such  charitable  institutions  as  they  may  deem 
proper,"^  or  "to  divide  the  remainder  of  the  estate  among  such 
charitable  institutions  in  a  certain  city  as  they  shall  deem  most 
worthy."^  Such  gifts  are  undoubtedly  valid.  The  objection 
that  they  are  too  indefinite,  in  that  they  do  not  point  out  the 
beneficiary  with  sufficient  certainty,  is  of  no  force,  as  the 
rule  id  cerium  est  quod  certum  reddl  2>otest  would  api>]y.  The 
general  charitable  purpose  of  the  testator  is  clear  and  definite, 
and,  having  thus  clearly  defined  his  intention,  he  has  the  power 
to  leave  to  his  executor  the  selection  of  one  or  more  out  of  a 
necessarily  limited  number  of  charitable  institutions  or  corpo- 
rations which  are  to  receive  the  property  disposed  of.  The 
question  in  all  these  cases  where  the  executor  is  empowered  to 
select  the  institution  is  not  as  to  the  indefiniteness  of  those 
who  are  to  be  tiie  final  beneficiaries,  tiie  ultimate  cestuis  qne 
truatent,  but  what  corporation  is  to  receive  the  legal  title  which 

tees  of  the  South  Newmarket  Meth-  tion  was  must  have  been  indifTerent 

odist  Seminary."     The  court   said:  to  him,  for  it  was  the  institution,  by 

"The    evidence    tends    strongly    to  whatever  name  it  was  known,  wiiicli 

sliow  that  he  did  not  know  tliat  the  lie  desired  to  patroni/.e  and  benefit.'' 

name  of  tlie  school  had  bcon  chan;4e<I.  '  Tichenor  v.  Brewer's  Adm'r  (Ky., 

lie  inriuired  how  the  school  at  South  18%),  3:{  S.  W.  K.  80. 

Newmarket    i)rospered,    and    often  -Kiiode  Island  Trust  Co.  v.  Olney, 

HfKjke  about  it.    Tliese  fac;ls  clearly  l.'J  Atl.  li.  118. 

kIiow  that  the   testator   had  in   his  ^\x\  re  Kinike's  Trust,  1").")  Ta.  St. 

mind   the   school   which    was  after-  101,  LM  Atl.  R.  1010. 

•wards  incorporated   by   its  present  *  IIdwo  v.  "Wilson,  01  ^lo.  45,  3S.  W. 

name.    Wiiat  its  peculiar  designa-  R.  3'JO. 


12iS 


LAW    OF    WILLS. 


[§  833. 


the  executor  holds  for  the  benefit  of  some  one  or  more  institu- 
tions to  be  named. 

The  executor  has  no  functions  to  perform  in  carrying  out  the 
charitable  intention  of  the  testator  except  to  convey  the  legal 
title  to  some  existing  charitable  corporation  which  he  may  se- 
lect. Jle  has  no  right,  and  is  under  no  obligation,  to  arrange  a 
plan  to  carry  out  the  charitable  intention  of  the  testator,  or  to 
create  or  supervise  the  means  and  methods  by  which  the  bounty 
of  the  testator  is  to  reach  and  benefit  any  indefinite  class  of 
persons.  As  soon  as  he  has  conveyed  the  property  to  an  insti- 
tution Avhich  is,  by  its  character  and  the  scope  of  the  work  in 
Avhich  it  is  engaged,  within  the  class  of  institutions  designated 
by  the  testator,  his  duty  is  ended,  and  he  has  no  right,  nor  is 
he  obligated,  to  go  further  and  inquire  into  the  application  of 
the  property  devised,  by  the  charitable  corporation  to  which 
he  has  iriven  it.  So  in  numerous  cases  the  validitv  of  the 
power  of  a  trustee  or  an  executor  to  select  a  charitable  corpo- 
ration out  of  several  has  been  sustained,' 


1  Quinn  v.  Shields,  62  Iowa,  129, 140, 
146,  17  N.  W.  R.  437;  Wells  v.  Doane, 
8  Gray  (Mass.),  201;  Brown  v.  Kelsey, 
2  Gush.  (Mass.)  243;  Saltonstall  v. 
Saunders,  11  Allen  (Mass.),  446;  Uni- 
versalist  Society  v.  Fitch,  8  Gray 
(Mass.),  421;  Powell  v.  Hatch,  100  Mo. 
592,  14  S.  W.  R.  49;  Sickles  v.  New 
Orleans,  80  Fed.  R.  868;  Glaypool  v. 
Norcross.  42  N.  J.  Eq.  545,  9  Atl.  R. 
112;  Hesketh  v.  Murphy,  35  N.  J.  Eq. 
530,  535;  AVeber  v.  Br3'ant  (Mass.),  37 
N.  E.  R.  203;  Fairchild  v.  Edson,  25 
K  Y.  Supp.  937,  5  Misc.  R.  451 ;  In  re 
Kinike's  Estate,  25  Atl.  R.  1016,  155 
Pa.  St.  101;  Appeal  of  Lancaster 
Trust  Co.,  25  Atl.  R.  1016,  155  Pa.  St. 
101 ;  Rhode  Island  Hospital  Trust  Co. 
V.  Olney  (R.  I.),  13  Atl.  R.  118.  In 
New  York  a  different  rule  is  recog- 
nized. In  that  state,  in  the  celebrated 
case  of  the  will  of  the  late  Samel  J. 
Tilden.  reported  Tilden  v.  Green,  28 
N.  E.  R.  880, 130  N.  Y.  29,  29  N.  E.  R. 
1033,  affirming  7  N.  Y.  Supp.  382,  it 
was  decided  that  a  bequest  to  trust- 
ees of  a  fund  to  be  applied  to  "  such 


charitable,  educational  and  scientific 
purposes  as  in  the  judgment  of  my 
executors  will  render  said  residue  of 
my  property  most  widely  and  sub- 
stantially beneficial  to  mankind," 
was  void.  The  court  held  that  such 
a  charitable  trust  was  void  not  only 
because  indefinite  as  to  its  objects,  but 
because  indefinite  as  to  its  purpose  as 
well.  So  also  in  Amherst  College  v. 
Ritch,  151  N.  Y.  282,  tlie  court,  con- 
struing the  will  of  Mr.  Fayerweather, 
who  devised  a  large  part  of  his  re- 
siduary estate  to  trustees,  privately 
instructing  them  before  his  death 
that  lie  wished  the  iiroperty  given  to 
them  to  be  devoted  to  certain  chari- 
table purposes  which  he  mentioned 
to  them,  refused  to  support  this  se- 
cret trust.  If  the  testator  gave  a 
legacy  absolutely  expecting  it  to  be 
applied  for  certain  purposes,  but  re- 
ceived no  promise,  express  or  implied, 
from  the  legatee,  equity  will  not 
raise  a  secret  trust.  The  rule  would 
be  otherwise  wliere  tlie  testator  was 
induced  to  make  a  will,  or  to  refrain 


§   S32.]  EULES    EEGULATIXG    CHARITABLE    GIFTS.  1249 

The  second  class  of  cases  comprises  those  where  a  discretion- 
ary power  to  select  the  objects  of  the  charity  is  delegated,  but 
in  which  the  charitable  purpose  of  the  testator  is  so  vaguely 
defined,  or  so  indefiniteh^  stated,  that  the  executor  in  exercis- 
ing his  discretion  finds  very  little  in  the  will  to  guide  him  in 
selecting  any  particular  charitable  purpose;  and  where  at  the 
same  time  the  testator  wholly  fails  to  point  out  any  particu- 
lar charitable  institution,  the  means  by  which  or  manner  in 
which  his  charitable  plans  are  to  be  put  into  effect,  except  per- 
haps in  the  most  general  and  indefinite  way.  The  general 
rule,  that  it  is  an  absolutely  essential  requisite  of  a  charitable 
trust  that  the  ultimate  beneficiaries  shall  be  indefinite,  is  ad- 
mitted. And  where  the  testator  has  omitted  to  point  out  the 
means  by  which  his  gift  is  to  reach  those  for  whom  it  was 
meant,  the  trustee  may,  either  with  or  without  the  aid  of  the 
court  of  equity,  devise  some  plan  in  order  that  his  intention 
may  not  fail.  If,  therefore,  the  legal  title  is  vested  in  the  ex- 
ecutor or  in  a  trustee  on  whom  the  testator  has  conferred  a 
general  discretion  to  carry  into  effect  his  charitable  purposes, 
albeit  such  purposes  are  framed  in  vague  and  ambiguous  lan- 
guage, the  court  will  lend  its  aid  by  declaring  such  a  disposition 
to  be  valid  and  by  enabling  the  trustee  to  carry  it  out  as  near 
as  possible  within  the  meaning  of  the  testator.^  Thus,  where 
the  testator  bequeathed  his  property  "  to  be  kept  in  reserve 
for  general  charitable  purposes  in  a  liberal  way,"  not  mention- 
ing any  particular  institutions  or  class  of  objects;  "-  where  he  be- 
queathed a  sum  of  money  to  the  executors  "  for  the  support 
and  education  of  such  orphan  children  in  a  county  as  may,  in 
the  judgment  of  the  executors,  be  most  deserving;"'  or  gave 
money  "  for  the  furtherance  and  promotion  of  the  cause  of  piety 
and  good  morals,  or  in  aid  of  objects  of  benevolence  and  char- 
ity, public  or  private,  or  tcmjiorary,  or  for  the  education  of  de- 
serving youths;"*  for  the  establishment  of  a  public  library 

from  altering  one  already  made,  liy  i  Dye  v.  Beaver  Creek  (S.  C),  20  S. 

a  promise  made  by  a  le^^atee  that  lie  E.  R.  717. 

would  apply  the  le;;acy  for  the  bene-  ^cji-iypool  v.  Norcross,  \i  N.  J.  Va\. 

fit  of  r-ortain  persons.    And  the  saino  Giri,  9  Atl.  H.  \Vl. 

rule  applies  where  the  heir,  or  one  ^'Sawtelle  v.  Witluim,  1)1  Wis.  412, 

of  the  next  of  kin  of  a  dereawMl  per-  0!)  N.  W.  H.  7'.'. 

HOM.  by  promises  persiiad«;d  him  not  ^Saltonstall  v.  Sanders,   10   Alleu 

to  maUo  a  will.     Amherst  CoIIcj^cf  v.  (Mass.),  410. 
Uitch,  151  N.  Y.  2»2,  yi'lj.    Soc  g  15^. 
79 


l'2o(J  LAW    OF    WILLS.  [§  S32. 

and  to  found  a  protectory  for  poor  boj^s;^  to  purchase  a  site 
for  an  opera  bouse  and  orphan  as3'luni  and  to  build  the  same ;  - 
for  foreign  missionary  purposes ; '  "to  the  cause  of  Christ  for 
the  benefit  of  true  evangelical  piety  and  religion  to  such  socie- 
ties and  in  such  proportions  as  trustees  may  think  proper;"* 
for  the  purpose  of  j)ropagating  the  teaching  of  religion  accord- 
ing to  the  form  of  government  and  book  of  discipline  of  the 
Presbyterian  church;*  to  be  divided  among  such  benevolent, 
charitable  and  religious  institutions  as  my  executors  may  se- 
lect;*^ for  the  benefit  of  the  members  of  the  church  in  the  dis- 
cretion of  the  presiding  bishop,  whether  for  public  schools, 
parks,  or  otherwise;^  or  gave  a  sum  of  money  in  trust  to  the 
county  commissioners  for  the  establishment  of  a  home,  the  trust- 
ees "to  be  the  judges  of  what  is  necessary;  "®  for  the  benefit 
of  poor  orphans,  to  be  selected  by  the  county  court  ;^  for  such 
charities  as  shall  be  deemed  most  useful  by  the  executors ;  ^*'  "  for 
the  promotion  of  piety  and  religion,  to  be  applied  and  distrib- 
uted by  certain  trustees,"  in  such  divisions  and  to  such  societies 
as  they  may  think  fit  "and  proper;  "^^  to  promote  education 
among  a  class  of  beneficiaries  in  any  mode  that  they  may  think 
best;^-  conferred  a  power  upon  the  bishop  of  the  diocese  "to 
sell  all  his  real  estate  and  to  dispose  of  the  proceeds  for  the 
church,  or  for  education,  as  he  in  his  wisdom  may  think  proper 
or  legal ;  " ''  made  a  bequest  of  the  residuary  estate  to  constitute 
a  fund,  the  income  of  which  Avas  to  be  applied  to  the  relief  of 
the  poor  and  unfortunate  in  private  charity,  and  to  others 
■who  might,  in  the  judgment  of  the  sisters  of  the  testator,  be 
worthy  of  relief;  '*  for  the  benefit  of  poor  churches  in  his  city 
or  vicinity;^'  a  bequest  of  money  "to  carry  out  the  intention 

1  Duggan  V.  Slocum.  83  Fed.  R.  244.        8  Board    Com'rs    Eush   County  v. 

2  Barkley  v.  Donelly  (Mo.),  19  S.  W.     Dinwiddle  (Ind.),  37  N.  E.  R.  795. 

R.  305.  »  Moore  v.  I\Ioore,  4  Dana  (Ky.),  354. 

3  Board  of  Foreign  Missions,  etc.  V.       icwells  v.  Doane,  3  Gray  (Mass.), 
Gulp,  25  Atl.  R.  117,  151  Pa.  St.  467,    201. 

31  N.  C.  135.  11  Going  v.  Emery,  10  Pick.  (Mass.), 

*  Going  V.  Emery,  16  Pick.  (Mass.)    107. 

107.  12  Treat's  Appeal,  30  Conn.  113. 

*  Succession  of  Audi,  39  La.  Ann.       i3  Lepage  v.  McNamara,  5  Iowa,  146. 
1043,  3  S.  R.  227.  "  Bullard  v.  Chandler,  21  N.  E.  R. 

e  In  re  Murphy's  Estate,  39  Atl.  R.     951,  149  Mass.  532. 
70  (Pa.,  1898);  Appeal  of  Kurtz.  Id.  i^  Mc  A  lister  v.  Burgess  (Mass.),  37 

'Staines  v.  Burton,  53  Pac.  R.  1015.    N.  K  R  759. 


§  832.]  EULES    KEGULATIXCr    CIIAKITABLE    GIFTS.  1251 

of  the  testator  to  provide  for  the  education  of  two  young  men 
for  the  ministry ; ''  ^  a  residuary  gift  "  for  tlie  advancement  and 
benefit  of  the  Cliristian  religion,  to  be  applied  as  in  my  execu- 
tors' judgment'-  will  best  promote  the  object  named;-  a  gift 
to  trustees  for  the  maintenance  and  education  of  poor  white 
citizens  of  this  county  to  keep  them  from  being  carried  to  the 
poor-house,^  has  been  held  valid.  A  valid  trust  of  this  descrip- 
tion requiring  the  trustee  to  distribute  the  fund  among  char- 
itable institutions  is  imperative  and  must  be  executed  within  the 
period  named  by  the  testator,  or,  if  no  period  is  named,  within 
a  reasonable  time,  according  to  the  peculiar  circumstances  of 
each  case.  If  the  trustees  refuse  or  unreasonably  neglect  to 
execute  the  trust,  the  court  of  equity  will  compel  them  to  act 
or  remove  them  and  appoint  others  in  their  place.'' 

On  the  other  hand,  bequests  to  an  executor  to  be  expended 
for  charity  in  his  dkcretloii;  '"  a  gift  to  trustees  with  directions 
to  pay  it  over  to  some  Presbyterian  institution  in  Baltimore,  as 
ifiey  may  determine^  for  charitable  or  religious  purposes ;  ®  a  gift 
to  a  municipal  corporation  for  the  benefit  of  the  poor  within 
its  limits ; ''  or  for  the  benefit  of  poor  orphans  to  he  selected  by 
the  trustees ;  ^  or  for  "  the  education  and  support  of  orphan  chil- 
dren in  such  way  and  inanner  as  A.  may  select',  "^  in  trust  for 
such  charitable  institutions  as  the  majority  of  the  trudees  sliall 
neUict;  •"  to  executors  to  be  by  tiiem  given  to  such  charitable 
societies  for  relieving  the  indigent  and  comfortless  a^  they  may 
select',  '^  or  to  be  applied  in  their  best  judgment  for  charitable 
and  religious  purposes  for  promoting  the  Christian  religion ;  '- 
a  legacy  "  to  be  applied  as  my  executors  may  think  jproper  oh- 

» Field  V.  Drew  Theological  Semi-  41.5,  69  N.  W.  R.  73;  Osborne  v.  Gor- 

nary,  41  Fed.  R.  375.  don,  86  Wis.  98. 

■i  Miller  v.  Teacliout.  24  Ohio  St.  "la.").        ■'  S<-hinufk('r  v.  Reel,  61  Mo.  592. 
A  devisf^U)  an  executor  to  be  given        *»Gunil)ol  v.  Tripiic,  75  Md.  252,  23 

certain  charities  "in  such  sums  and  Atl.  R.  461. 

projiortioiiH  <is,    in   their   discretion,         "  Wililcnii;iii   v.   Baltimore,  8  Mil. 

they  may  think  pn^jM-r,"  and,  if  they  551. 

thought  best,  to  pay  a  portion  of  it  at         '*  ililler  v.  Atkinson,  {V,\  N.  C.  5i}7. 
Huch  times  and  in  such  amounts  as        "Rose  v.  Hatch.  125  N.  Y.  427,  26 

they  may  think  |»roper  to  "worthy  N.  K.  R.  167. 

IKX>r  girls,"  is  void  for  uncertainty.        '•' Hutler  v.  (Irecn,  16  N.  Y.  Supp. 

WheeUwk    v.    Am.-riciin   Tract   Sck-.  KHH.  9  N.  Y.  S.  890. 
(Mich.,  1H96).  66  N.  W.  R.  955.  "  l'.<-(kinan  v.  Honsor,  2!{  N.  Y.  29S. 

aSUiUi  v.  (Jrifhth.  2  Del.  Ch.  392.  '-  Diilany  v.  Middletou,  72  Md.  07. 

♦Sawtclle  v.  William,  9  J  Wis.  112, 


1252  LAW   OF   WILLS.  [§  833. 

jects  according  to  the  scriptures,  the  greater  part  to  missionary 
purposes;  *' '  a  residuary  gift "  to  some  disposition  thereof  wliich 
my  executors  may  consider  as  promising  most  to  benefit  tlic 
town  and  trade  of  A.  in  such  manner  as  appears  to  them  to 
3'ield  the  greatest  good;"-^  and  a  bequest  to  be  distributed 
among  charitable  institutions  in  Pennsylvania  as  executors 
may  deem  most  beneficial  to  mankind,  "  so  that  part  of  the 
colored  population  in  each  of  the  said  states  shall  partake  of 
the  benefits  thereof,"^  have  been  held  invalid.^ 

§  833.  The  validity  and  performance  of  conditions  attached 
to  charitable  gifts. —  The  testator  may  attach  a  condition  to 
his  devise  or  bequest  for  charitable  purposes,  upon  the  perform- 
ance of  which  it  will  vest  in  the  trustee,  or  by  the  non-per- 
I'ormance  of  w-hich  it  will  be  defeated.  The  rules  elsewhere 
explained  regulating  testamentary  gifts  upon  condition  are  in. 
general  applicable.-^  If  the  condition  is  precedent,  the  per- 
formance of  which  is  required  before  the  legacy  shall  vest,  a 
substantial  compliance  is  necessary.  Thus,  w^here  a  testator 
devises  land  to  a  college  upon  condition  that  it  should  change 
its  name  prior  to  his  decease,  the  devise  is  void  where  the  ben- 
eficiary has  not  in  fact  changed  its  name.^  If  the  condition, 
being  precedent,  is  so  indefinite  that  it  cannot  be  performed, 
the  devise  which  is  to  vest  upon  its  performance  will  be  void.'' 
A  condition  that  a  sum  of  money  is  to  be  paid  to  a  hospital  by 
a  trustee  appointed  in  the  will,  in  case  the  Episcopal  churches 
in  a  city  shall  prove  to  his  satisfaction  that  they  w^ould  per- 
manently support  it  as  a  church  hospital,  is  not  void  for  in- 
definiteness.^ 

1  Bridges  V.  Pleasants,  4  Ired.  (X.  C.)  'Beecher  v.  Yale,  45  K  Y.  Supp. 

Eq.  26.  622. 

nVheeler  v.  Smith,  9  How.  (U.  S.)  « At  water  v.  Russell,  49  Minn.  57, 

55.  51  N.  AV.  R.  629;  In  re  Robinson,  61 

3  Fontain  v.  Ravenal,  17  How.  (U.  S.)  L.  J.  Ch.  17.  A  legacy  of  an  amount 
369.  to  be  paid  to  a  charitable  institution 

4  In  Louisiana  a  testator  cannot  upon  its  raising  an  amount  as  a  con- 
leave  the  selection  of  a  residuary  dition  precedent  is  not  invalid,  and, 
legatee  to  the  discretion  of  his  exec-  on  tlie  performance  of  the  condition, 
utor.  Burke's  Succession  (La.,  1899),  the  legacy  will  vest  in  tiie  legatee. 
25  S.  R.  387.  Penick  v.  Thorn's  Trustee,  90  Ky.  665, 

5  See  §  479  et  seq.  14  S.  W.  R.  830. 
•>  Merrill  v.  Wisconsin  Female  Col- 
lege, 74  Wis  415,  419. 


§  S33.] 


KULES    EEGUL.VTIXG    CnAKITABLE    GIFTS. 


12ol 


Tlie  testator  may  impose  as  a  condition  upon  the  charitable 
bequest  that  a  scheme  shall  be  devised  to  carry  out  his  inten- 
tion by  certain  persons  named  by  him  in  his  will  before  the 
money  bequeathed  shall  be  paid  over.  And  he  may  also  re- 
quire that  the  scheme  thus  devised  shall  be  certified  as  practi- 
cable and  seemiugl}^  certain  of  success  by  a  person  in  whom  he 
has  confidence  and  upon  whom  he  has  conferred  the  power  to 
certify  to  these  facts.^ 

The  testator  may  also  annex  a  condition  to  his  gift,  that,  on 
the  happening  of  an  event,  the  fund  given  to  tlie  first  legatee 
shall  go  over  to  others ;  ^  as,  for  example,  where  the  testator  pro- 
vided that,  if  the  charit}''  was  ever  discontinued,  the  legacy  should 
go  to  another  institution.^  Every  gift  of  land  or  money  for  chari- 
table purposes  is  upon  the  implied  condition  that  it  shall  be  de- 
voted perpetually,  by  the  corporation  or  its  successors,  to  a  spe- 
cific charitable  purpose  which  is  pointed  out  by  the  testator.  It 
is  the  general  rule  in  America  that  upon  breach  of  this  implied 
condition,  upon  which  all  charitable  gifts  of  land  are  held,  the 


1  Appeal  of  Seagrave,  12.")  Pa.  St.  3G3, 
17  Atl.  R.  412.  In  tliis  case  a  residue 
was  left  to  be  paid  to  the  trustees  of 
a  liospital  which  was  to  be  organized 
within  five  years,  the  fund,  in  the  lan- 
guage of  the  testator,  to  be  only  a  nu- 
cleus for  the  establishment  and  main- 
tenance of  tlie  institution  named.  He 
further  directed  and  empowered  cer- 
tain ecclesiastical  authorities  to  de- 
vise .a  sclieme  for  the  proposed  hospi- 
tal and  to  appoint  trustees  to  carry  tlie 
scheme  out.  He  also  stated  that,  as  he 
did  not  wish  liis  estate  to  be  wiisted 
in  an  inofft'ctual  atteiiijit  to  establish 
the  institution  named,  and  as  he  knew 
that  other  subscriptions  for  the  same 
purpose  would  be  refpiinid,  he  did  not 
wish  the  bishop  and  tlie  conference, 
which  were  authorized  to  formulate 
the  scheme,  to  call  lor  Dm  payiinMit 
of  the  mowy  unless  the  plan  devised 
'•should  be  jiraf-tical  and  sfscmingly 
certain  of  succchs."  "NVIicn  tni^lees 
liad  Ixren  ai)point<'d,  land  pun-liascd 
Kiidicient  for  the  ere<;tiori  of  on<s 
building,  and  a  very  largo  sum  of 


money  pledged  and  collected  from 
third  persons,  it  was  held  tiiat  the 
conditions  had  been  complied  with, 
and  that  the  fund  bequeatiied  should 
be  paid  to  the  trustees  named,  though 
no  buildings  had  in  fact  been  begun, 
and  though  all  the  money  subscribed 
had  not  actually  been  collected  from 
the  subscribers. 

2  Parish  of  Christ  Churcli  v.  Trust- 
ees of  Donations,  etc.,  G7  Conn.  o.j4, 
35  Atl.  R.  o.j2. 

3  Wood  V.  Hammond,  IG  R.  I.  08, 17 
Atl.  R.  324.  In  Now  York  it  has  hoou 
held  that  a  condition  tiiat  a  chari- 
table institution,  such  as  a  church, 
shall  pay  an  annuity  out  of  the  legai-y 
given  to  it,  is  not  invalid,  though 
\inder  its  charter  the  institut  ion  is  not 
authorized  to  jiay  annuities,  liootli 
v.  Haj.tist  Church,  120  N.  Y.  215,  28 
N.  E.  R.  238.  Suo  also  ]\Iills  v.  Davi- 
son (N.  J.  Kq.),  35  Atl.  R.  1072.  as  to 
what  language  attached  to  a  charita- 
ble gift  forbidding  alienation  by  salo 
or  mortgage  will  cunstilulu  u  condi- 
tion. 


1254  L-^"^v  OF  WILLS.  [§  834. 

land  itself  reverts  to  the  donor  or  his  heirs  at  once,  or,  in  the 
case  of  a  devise  in  the  will  of  the  donor,  to  his  residuary  devisee.^ 
This  is  the  general  rule  in  the  case  of  a  diversion  of  charitable 
funds  to  purposes  contrary  to  the  intention  of  the  donor  or  tes- 
tator. Ihit  where  there  is  no  intentional  diversion  of  a  charitable 
gift,  and  it  is  in  danger  of  failing,  merely  because  the  original 
institution  to  which  it  was  given  is  going  out  of  existence,  a 
court  of  equity  will  interfere,  and,  in  the  manner  pointed  out 
in  the  next  section,  will  endeavor  to  continue  the  application 
of  the  bounty  of  the  testator. 

§  834.  The  effect  of  the  consolidation,  division  or  dissolu- 
tion of  a  corporation  which  is  the  donee  of  a  charitable  gift. 
The  case  of  a  gift  to  a  charitable  institution,  which  has  ceased 
to  exist  prior  to  the  death  of  the  testator,  affords  an  oppor- 
tunity'- for  a  construction  cy  prcs  in  determining  the  destination 
of  the  fund  given  by  the  testator.  The  English  chancellors  of 
the  time  of  Charles  II.  would  have  felt  little,  if  any,  hesitation 
in  applying  the  bequest  which  had  been  given  to  a  defunct 
corporation,  to  another  charitable  purpose  somewhat  analo- 
gous. But  the  modern  English  cases  refuse  to  invoke  the  aid 
of  the  cy  i?re8  doctrine  where  the  bequest  is  to  a  particuhir 
charitable  institution  by  name;  and  where  the  institution  has 
ceased  to  exist  prior  to  the  death  of  the  testator,  the  legacy 
will  lapse  and  go  to  the  residuary  legatee  or  to  the  next  of  kin.^ 
So  in  America,  if  a  charitable  corporation  to  which  the  testa- 
tor has  given  property  is  dissolved  ])rk)r  to  his  death.,  and  its 
property  is  transferred  to  another  corporation  which  is  carried 
on  for  an.  entirely  different  charitable  purjwse,  the  legacy  lapses.* 

iMott  V.  Danville  Seminary  (111.),  Jur.  (N.  S.)  12;  Hayter  v,  Trego.  5 

21  N.  E.  R.  927:  Wardens  v.  Attorney-  Euss.  113;  In  re  Ovey,  L.  R.  29  Ch. 

General,  164  ilrss.  188, 41  N.  E.  R.  231:  Div.  560;  Broadbent  v.  Barrow,  Id.; 

Appeal  of  Guinbert,  110  Pa.  St.  496,  Rymer  v.  Stanfield,  13  Reports,  112; 

I  Atl.  R.  437 ;  Moseman  v.  Heitshousen  Id.,  (1895)  1  Ch.  19. 

(Xeb.,  1898),  69  N.  AV.  R.  957:  Cami>  » Merrill  v.  Hayden.  86  Me.  133, 135, 

bell  V.  City  of  Kansas,  102  Mo.  326,  29  Atl.  R.  949;  Simmons  v.  Burrell, 

13  S.  W.  R.  897;  Seitz  v.  Seitz  (Pa.),  17  28  N.  Y.  S.  025,  8  Misc.  R.  388;  In  re 

Atl.  R.  229;  Schlessinger  v.  Mallard,  Cowen's  Estate,  4  Pa.  Dist.  R.  435. 

II  Pac.  R.  728,  70  Cal.  326;  ante,  %  47.  So  where  a  testatrix  devised  her  re- 
2  Clark  V.  Taylor.  1  Drew.  642:  Rus-  siduary  estate  to  a  school  district  to 

sel  V.  Kellett,  3  Sm.  &  Gif.  264:  Marsh  build  a  school,  and  the  scliool  district 

V.  Means,  5  Weekly  R.  815;  Fisk  v.  was,  after  the  execution  of  the  will, 

Attorney-General,  L.  R  4  Eq.  521;  but  prior  to  her  death,  abolished  by 

Langford  v.  Gowland,  3  Gif.  617,  9  statute,  the  residuary  gift  lapsed  and 


§   S35.]  KULES    KEGULATIXCr    CHARITABLE    GIFTS.  1255 

The  dissolution  or  extinction  of  a  charitable  corporation,  iu 
•which  property  devised  by  the  testator  has  hecome  vested,  does 
not  always  effect  a  reversion  of  the  property'  to  the  heirs  of  the 
testator,  in  the  absence  at  least  of  an  express  condition  to  that 
effect.  The  court  of  equity  will  arrange  that  the  property  of 
the  defunct  institution  shall  be  applied  to  a  purpose  which  is 
similar  in  its  nature  to  that  of  the  original  institution,  through 
some  other  existing  institution.^  Thus,  the  proceeds  of  the  sale 
of  the  property  of  an  orphan  asylum  which  had  been  dissolved 
may,  on  payment  into  court,  be  devoted  to  the  aid  of  a  society 
for  the  prevention  of  cruelty  to  children  in  preference  to  a  dis- 
pensary or  hospital.^  TThere  two  corporations  are  created  by 
the  legislature  to  succeed  to  the  powers,  duties  and  rights  of 
another,  to  which  a  valid  charitable  gift  has  been  made,  the 
property  will,  on  the  death  of  the  testator,  be  divided  between 
the  two  bodies  in  proportion  to  the  shares  which  they  take 
by  the  statute  in  the  property  of  the  non-existing  corporation.' 

§  835.  Definitions  of  tlie  words  pointing  out  the  area 
witliiu  which  charital^le  funds  are  to  be  distributed. —  The 
question  arises  in  construing  a  gift  which  is  to  be  distributed 
among  charitable  institutions  located  within  a  territorial  area 
mentioned  by  the  testator,  whether  he  speaks  in  view  of  the 
condition  of  affairs  existing  at  the  date  of  the  will,  or  whether 
he  refers  to  the  date  of  his  death.^  If  he  directs  money  to  be 
distributed  among  the  poor  of  the  town  of  A.,  and,  subse- 
quently to  the  execution  of  the  will,  the  town  of  A.  is  sub- 
divided, or  is  consolidated  with  another  town,  the  inquiry  is 
what  cl'ass  of  persons  was  intended?  It  has  been  said  that, 
where  the  testator  makes  a  gift  directly  to  the  city  or  town  in 
wJiicJi  he  resides,  or  to  its  jHJor,  he  may  have  had  in  contempla- 
tion that  at  some  future  date  it  would  possibly  be  expanded 

desceiided  to  her  heirs  as  intestate  Incase  the  original  institution  which 

property.     Brooks  v.  City  of  Belfast,  has  suspended  subsequently  resumes 

;i8  Atl.  R.  222  (Me.,  1898).  oi)oration,  the  custody  and  adniinis- 

1  In  re  Seller's  Cliap.  M.  E.  Church,  tration  of  tlie  fund  may  bo  restored 

27  W.  N.  C.  88:].  21  Atl.  R  14.');  .lones  to  it.     Barnard  v.  Adams,  58  Fed.  R. 

V.  R<;nsliaw,  l;iO  Pii.  St.  :}27,  18  Atl.  R.  :Ji;{. 

«."j1;  In  n-  V.udiorne.  18  R.  I.  :]81).  28  3  Diocese  of  East  Carolina  v.  Dio- 

Atl.  R.  :M1;  In  re  Sl.«vin,  (1891)  2  Clu  cese  of  Nortli  Carolina,  102  N.  C.  442, 

2: JO.  9  S.  E.  R.  :n(). 

^  Attorney-fleneral    v.     Paiilino  *Soe  a/j/e,  ^  14. 
Home,  141  I'a.  St.  WT,  21  Atl.  It.  001. 


125G  LAW   OF   WILLS.  [§  830. 

and  extended  so  as  to  include  within  its  limits  persons  wha 
were  not  its  residents  Tvhen  the  will  was  made.  Hence,  where 
trustees  were  given  a  discretion  to  distribute  money  to  the  poor 
of  A.,  they  are  not  conlined  to  the  limits  of  the  town  as  it  ex- 
isted at  the  date  of  the  loill,  bat  may  take  in  territory  which 
had  been  added  to  it  subsequently.^  In  the  United  States  the 
boundaries  of  a  municipal  corporation  are  almost  invariably 
designated  explicitly  by  its  charter,  and  generally  no  confusion 
arises  in  determining  "what  lands  shall  constitute  the  city.  But 
in  England,  and  perhaps  in  some  exceptional  cases  in  this 
countr}'-,  dilliculties  in  construing  a  gift  to  hospitals  or  other 
charitable  institutions  of  a  city  might  arise.  Thus  the  word 
"London,"  in  its  popular  sense,  has  a  fluctuating  meaning. 
Where  the  testator  gave  a  bequest  to  be  divided  among  the- 
'•'■hosjntals  of  the  cit  if  of  London  j''  it  is  clear  that  he  did  not 
mean  to  use  the  word  in  its  technical  sense,  as  meaning  only 
the  metropolitan  district,  by  which  Kensington  and  Westmin- 
ster would  be  excluded,  nor  could  he  have  meant  the  terri- 
tory within  the  bills  of  mortality,  which  were  purely  arbitrary, 
excluding  a  large  part  of  the  metropolis  itself.  The  court, 
after  some  hesitation,  finally  adopted  a  definition,  w^hich  it  con- 
fessed was  extremely  indefinite,  that  by  the  city  of  London, 
the  old  city,  with  Westminster,  South wark,  and  as  much  ground 
in  Middlesex  and  Surrey  as  was  built  on  or  contiguous  thereto, 
and  within  call,  Avas  meant.^ 

§  836.  Procurement  of  charitable  bequest  by  unfair  means, 
fraud  or  undue  influence. —  A  charitable  gift,  in  other  re- 
spects valid,  may  be  set  aside  because  the  testator  was  induced 
to  execute  it  by  fraud  or  undue  influence.  The  general  princi- 
ple at  the  basis  of  the  rule,  that  undue  influence  invalidates 
a  legacy  procured  by  it,  is  applicable  to  charitable  gifts.  It 
is  not  necessary  that  a  person  exercising  the  undue  influence 
shall  desire  or  succeed  in  procuring  a  benefit  for  himself  only. 

1  Mclntire  y.  Zanesville,  17  Ohio  St.  stitute  the  city  of  New  York,  the  pre- 
352,  363;  Zanesville  Canal,  etc.  Co.  v.  existing  terminology  is  still  in  com- 
Zanesville,  20  Ohio,  483.  mon  use.     Thus,  persons  in  Brooklyn 

2  Wallace  v.  Attorney-General,  33  will  speak  of  going  to  New  York 
Beav.  384,  392.  At  the  present  writ-  when  in  fact  they  mean  Manhattan, 
ing,  nearly  two  years  after  the  con-  and  to  Long  Island  City,  which  is 
solidation   of  the    numerous    cities,  now  no  longer  in  existence. 

towns  and  villages  which  now  con- 


§  83G.]  EULES    REGULATIXG    CIIAEITABLE    GIFTS.  125 T 

If  by  the  employment  of  duress  or  pressure  amounting  to  un- 
due influence  he  shall  overcome  the  will  of  the  testator,  so  that 
while  thus  under  his  control  the  testator  bequeaths  money  to 
some  third  person  named  by  him,  the  bequest  is  invalid.  A 
clear  case  of  undue  influence  is  made  out  where  the  testator, 
being  under  the  complete  control  of  his  spiritual  adviser,  and 
having  no  volition  of  his  own,  bequeathed  money  to  a  religious 
body  to  which  the  latter  belongs.  Eut  it  is  not  to  be  under- 
stood that  a  charitable  gift  must  be  from  a  testator  who  is 
wholly  uninfluenced  in  every  way.  Indubitably  fair  means 
may  be  employed  to  procure  a  charitable  bequest.  One  may 
approach  the  testator  and  seek  to  direct  the  current  of  his 
bounty  in  favor  of  a  particular  corporation  by  appeals  to  his 
sympathy,  or  pride,  or  his  religious  belief.  Solicitations,  sug- 
gestions, argument,  and  perhaps  remonstrance,  may  be  used. 
Advice,  persuasion  and  entreaty  do  not,  in  connection  with  a 
charitable  gift,  constitute  undue  influence,  if  no  fraud  or  de- 
ceit is  practiced  and  no  force,  imposition  or  duress  is  employed.* 
TVhere  a  will  which  makes  a  provision  for  a  church  is  drawn 
by  and  executed  under  the  supervision  of  a  rector,  priest,  pastor 
or  other  officer  of  that  church,  the  same  rules  and  principles 
are  applicable.  This  is  particularly  true  where  the  person 
drawing  the  will  is  named  as  an  executor  to  carry  out  the  pur- 
poses of  the  testator.  If  the  testator  was  aged,  infirm  or  of 
weak  mind ;  if,  prior  to  the  execution  of  the  will,  he  had  mani- 
fested little,  if  any,  interest  in  the  church  or  institution  which 
was  the  beneficiary;  if  those  who  were  then  living  and  the  nat- 
ui-al  objects  of  his  bounty  were  designedly  kept  in  ignorance 
of  his  illness  and  of  his  testamentary  disposition, —  the  convic- 
tion is  almost  irresistible  that  the  will  was  not  S}iontancous, 
but  was  procured  by  undue  influence.^ 

J  Pn;si(lent,  etc.  of  Bowduin   Col-  required  by  tho  rules  of  tlio  order, 

lege  V.  Merritt,  75  Fed.  R.  499.  is  not  by  tliat  fact  alone  presumed 

^  Drfike's  Appeal,  4.">  Conn.  9,  19,  1  to  have  been  procured  bj'  coercion 

Am.  Prob.  R.  227,  2:i7;  Tomkins  v.  or  undue  influence,  where  it  does  not 

Toinkins,  1   Bail.  90;  Langtctn's  Will,  aflirniativeiy  ai)pear  that  tho  testa- 

1  Tucker,  Sur.   R.  .''01.     A  will  by  a  trix    ever    regretted    having   taken 

irieiiilx-r  of  a  n-ligious  order  giving  the  vow.     In  re  Will's  Kstatti  (Minn., 

}i«'r  i.roperty  to  the  order,  made  in  1897),  OO  N.  W,  R  lOUO.    Siiti  ii\so  a  ate, 

fuiliiliiient  of  a  vow  by  tlie  testatrix,  ^  IIG. 


12jS  law  of  wills.  [§  837. 

§  S'iH.  Tlic  Eiiglisli  statutes  of  superstitious  uses. —  When 
Henry  YIIL,  after  his  quarrel  with  the  Church  of  Rome,  had 
assumed  the  headship  of  the  English  Church,  and,  as  a  part  of 
bis  scheme  of  aggrandizement,  liad  appropriated  the  property 
of  the  monastic  houses  throughout  the  kingdom,  parliament, 
urged  by  the  importunity  of  the  king,  enacted  a  statute  under 
Avhich  uses  and  trusts  thereafter  declared  in  lands  and  heredita- 
ments except  for  the  term  of  twenty  years,  for  the  purposes  of 
procuring  masses,  or  for  the  support  of  the  Catholic  Avorship,  or 
for  like  purposes,  were  declared  to  be  absolutely  void.  Subse- 
quently in  the  first  year  of  the  reign  of  his  son,  Edward  YL, 
another  and  similar  statute  was  passed  which  declared  that 
every  gift,  either  of  land  or  personal  property,  in  trust  or  other- 
wise, for  the  perpetual  support  of  a  priest,  or  for  furnishing  or 
lighting  any  lamp  or  other  light  in  a  chapel,  or  for  the  support 
of  masses  for  the  dead,  or  for  the  saying  of  prayers  to  release 
souls  from  purgatory,  or  for  cmfj  like  purjwse,  should  be  void, 
and  the  property  thus  given  was,  under  the  express  terms  of 
the  statute,  forfeited  to  the  king.  Out  of  these  statutes  a  doc- 
trine grew  up  that  devises  to  superstitious  uses  were  invalid  in 
England  which  is  of  some  historical  interest,  though  it  was 
never  transplanted  to  America,  or  incorporated  into  our  system 
of  law. 

The  statutes  mentioned,  being  in  restraint  of  the  rules  of  the 
common  law,  received  a  strict  construction  in  the  English  courts. 
Thus,  devises  and  gifts  in  trust  for  the  support  of  ministers  and 
places  of  worship  of  Protestant  dissenters,  and  for  the  propaga- 
tion of  the  religious  tenets  of  such  persons,  were  sustained  by 
the  court  of  chancery  in  very  early  times,  despite  the  fact  that 
the  teaching  of  such  doctrines  was  altogether  at  variance  with 
and  contrary  to  the  dogmas  of  the  established  church.^ 

1  Attorney-General  v.  Baxter,  1  Eq.  text  is  also  sustained  by  the  cases  of 

Cas.  Ab.  96,  pi.  9,  1  Vern.  248,  2  id.  Attorney-General  v.  Pearson,  .3  Meri- 

105.     In  this  case,  though  the  Lord  vale,  ;J58,  where  the  whole  subject  of 

Keeper  at  first  held  a  bequest  which  superstitious    ases   is    examined  in 

was  to  be  distributed  among  certain  great  detail  and  discussed  with  much 

ministers  who  had  been  ejected  from  ability  by  Lord   Eldon.     Attoruey- 

their  pulpits  under  one  of  the  acts  General  v.  Hickman,  2  Eq.  Cas.  Ab. 

punishing  non-conformity  to  be  in-  193.    In  the  case  of  Doe  v.  Hawthorn, 

valid,  his  decision  was  subsequently  2  B.  &  Al.  96,  a  devise  to  a  chapel 

reversed  in  the  appellate  court.   The  under  the  patronage  of  the  trustees 


f  §  838,  839.]     KULES  kegulatixg  charitable  gifts.  1259 

§  838.  The  validity  of  bequests  for  the  support  of  the 
Koman  Catholic  religiou  in  England. —  As  a  result  of  the 
operation  of  the  two  statutes/  all  gifts,  either  of  real  or  per- 
sonal property,  for  the  support  or  propagation  of  the  Eoman 
Catholic  belief  were,  during  a  period  of  over  two  centuries,  ab- 
soluteh'  void  in  England.  At  length,  however,  in  consequence 
of  the  increase  of  material  wealth,  and  the  spread  of  the  prin- 
ciples of  religious  and  civil  liberty  at  the  beginning  of  the  pres- 
ent century,  such  a  condition  of  things  became  intolerable.  To 
remedy  a  condition  of  affairs  which  worked  so  much  injustice 
to  a  large  and  law-abiding  class  of  persons,  it  was  enacted  by 
the  English  parliament  in  the  year  1833  that  "•  his  majesty's 
subjects,  professing  the  Eoman  Catholic  religion  in  respect  to 
their  schools,  places  for  religious  worship,  education  and  chari- 
table purposes  in  Great  Britain,  and  the  property  held  there- 
with, and  the  persons  employed  in  and  about  the  same,  shall, 
in  respect  thereof,  be  subject  to  the  same  laws  as  the  Protestant 
dissenters  are  subject  to  in  England  in  respect  to  their  schools 
and  places  for  religious  worship,  ed  ucation  and  charitable  pur- 
poses, and  not  further  or  otherwise."  Since  the  enactment  of 
this  statute,  testamentary  gifts  for  the  advancement  of  the 
Eoraan  Catholic  religion,  and  for  educational  and  charitable 
purposes  under  the  control  and  supervision  of  the  authorities  of 
that  church,  have  been  and  are  perfectly  valid  so  long  as  they 
are  not  otherwise  contrary  to  the  law  of  the  land.^ 

§  839.  The  American  view  of  the  doctrine  of  superstitious 
uses. —  The  English  statutes  of  mortmain  are  not  in  operation 
in  any  part  of  our  country,  partly  for  the  reason  that  they  never 
formed  a  part  of  the  system  of  law  which  was  in  force  in  the 
colonies  prior  to  the  Revolution,  and  partly  because  these  stat- 
utes are  absolutely  irreconcilable  with  and  repugnant  to  our 
principles  of  government.  In  most  of  the  states  there  are  very 
powerful  and  effective  limitations  i)laeed  upon  the  acquisition 

of  tlie  counte8.s  of  Jluntinpjton  was  IJoav.  14.    See  also  Attorney-General 

.su.staine'1.     And  at  a  later  pcriofl  a  v.  Cook.  2  Ves.  HA. 

trast  for  the  purpose  of  projKiKatinj;  123  Hen.  VIII.,  cli.  10,  aii«l  1  VAw. 

the  writin;«i  of  Joanna  Sovitlicot,  who  VI..  ch.  14. 

]Hi\ifi\<-t\  an<l  prearlic'l  that  sln'  was  '-'  linidshaw  v.  Taskor,  2  My.  &  K. 

witli  fhiM  l>y  the  Holy  (Jho.st.  ami  2'Jl;  la  re  Micliurb  Trii-sts,  28  lioav. 

other 'h'lusifjns  of  a  similar  fharafti-r.  li-l. 

wa.s  upheld.     Tliorntou  v.  Howe,  :',l 


12G0  LAW   OF   WILLS.  [§  839, 

of  lands  by  corporations,  and  these  statutes,  so  far  as  thev  re- 
quire the  possession  of  a  statutory  license  by  the  corporation, 
undoubtedly  resemble  the  statutes  of  mortmain.  Tlie  statute 
of  9  George  II.,  chapter  3G,  which  prohibits  disposition  of  lands 
to  charitable  uses,  unless  by  deed  made  and  enrolled  at  least 
six  months  before  the  death  of  the  donor,  was  purely  local,  and 
did  not  extend  to  Ireland  or  the  colonies.^  But  similar  stat- 
utes have  been  enacted  in  very  many  of  the  states. 

In  view  of  the  absence  of  any  state  church  and  of  the  abso- 
lute freedom  of  religious  belief  and  worship  which  is  guar- 
antied by  the  federal  and  all  the  state  constitutions,  the  theory 
of  the  invalidity  of  charitable  gifts,  because  of  their  devotion 
to  superstitious  uses,  has  no  place  in  our  law.  As  has  been  ex- 
plained in  a  prior  section,  the  early  statutes  under  which  so 
many  gifts  for  religious  purposes  were  overthrown,  because 
superstitious,  have  been  repealed  or  materially  modified  in  Eng- 
land.- They  never  had  any  operation  in  the  colonies  as  such, 
and  are,  it  needs  hardly  be  said,  absolutely  repugnant  to  our 
system  of  government.^  It  is  hard  to  see  how  the  courts  could 
hold  otherwise.  In  America  all  forms  of  religion  not  involv- 
ing the  teaching  of  immorality  are  tolerated,  and,  as  no  one  of 
them  is  established,  each  and  all  have  the  same  right  to  the 
protection  of  the  law.  It  follows,  therefore,  that  all,  so  far  as 
they  do  or  do  not  contravene  any  law  of  the  land,  are  equally 
to  be  forbidden  or  equally  to  be  advanced  and  defended.  Chris- 
tianity is,  in  a  sense,  a  part  of  the  law  of  the  land,  in  so  far,  at 
least,  as  the  wise  and  benignant  principles  of  its  morality  have 
received  the  sanction  and  confirmation  of  our  courts.  But  if 
religious  liberty  is  to  be  more  than  a  vague  generality,  it  is 
clear  that  a  rule  of  law  by  which  such  an  affirmance  is  given 
to  the  religion  of  Christ  must  not  be  construed  to  prevent  the 
devotees  of  any  other  religious  belief  from  worshiping  their 

1  Odell  v.  Odell,  10  Allen  (Mass.),  raised  in  the  cases,  but  where  an 

6;  Tudor  on  Charitable  Trusts,  94:  objection  has  been  made  upon  this 

Story  on  Equity,  sec.  1194.     A  some-  ground,  it  has  always  been  repudi- 

what  similar  act  in  Massachusetts  ated  with   much  firmness  and   un- 

was  repealed  immediately  after  the  answerable  logic  by  the  courts.    Gass 

Revolution.  Bartlett  v.  King,  12  Mass.  v.  Wilhite,  2  Dana  (Ky.),  170;  Attor- 

545.  ney-General  v.  Jolly,  1  Rich.  (X.  C.) 

2See§838.  Eq.  99;  Frierson  v.  General  Assem- 

3  The  question  has  not  been  often  bly,  7  Heisk.  (Tenn.)  683. 


§  840.]  EULES    ^vEGULATI^■G    CnAKITABLE    GIFTS.  12G1 

Creator  according  to  the  dictates  of  their  conscience,  or  to  for- 
bid them  from  devoting  their  property  by  testamentary  dispo- 
sition to  carrying  on  the  form  of  worship  in  which  they  be- 
lieve, and  propagating  the  doctrines  of  their  faith.  Hence,  the 
law  cannot  forbid  the  Roman.  Catholic  from  devising  his  estate 
for  the  purpose  of  founding  a  nunnery  or  a  monastery,  or  for 
the  procurement  of  masses;  or  the  Hebrew  from  giving  his 
propertv  over  to  the  propagating  of  his  faith ;  or  even  the  Mo- 
hammedan, or  the  Buddhist,  from  devoting  his  wealth,  the  one 
to  assist  or  relieve  those  who  may  undertake  the  annual  pil- 
grimage to  Mecca,  the  other  to  build  a  temple  for  his  graven, 
idols. 

§840.  The  English  statutes  of  mortmain, —  At  the  com- 
mon law,  that  is  to  say,  in  the  absence  of  any  disabling  stat- 
ute, a  corporation,  whether  ecclesiastical  or  lay,  had  the  same 
capacity  as  a  natural  person  to  acquire  a  valid  title  to  lands  by 
purchase  and  to  hold  and  dispose  of  the  same  for  its  corporate 
purposes.^  This  natural  and  unlimited  right  possessed  by  all 
corporations  continued  to  be  recognized  until,  for  reasons  pres- 
ently to  be  explained,  it  was  curbed  and  restricted,  and  in 
many  cases  wholly  abolished  b}^  statutes.  After  the  conquest 
of  England  by  the  Xormans,  and  when  these  semi-barbarous 
and  domineering  warriors  had  firmly  established  their  govern- 
ment and  had  engrafted  the  principles  of  the  feudal  system 
upon  the  framework  of  the  English  nation,  the  power  of  the 
Christian  church  greatly  increased.  The  clerics  enjoyed,  and 
often  abused,  a  monopoly  of  that  small  amount  of  learning 
which  had  survived  the  incursions  of  the  northern  barbarians 
and  the  ravages  of  a  continual  and  internecine  warfare.  What- 
ever of  conscience  still  remained  in  the  hearts  of  the  members 
of  the  conquering  race  prompted  them  to  seek  at  the  hands  of 
the  priest  or  bishop,  when  weakened  by  illness  or  when  the 
terrors  of  death  came  ujion  them,  absolution  for  their  deeds  of 
munler  and  rapinij.  The  houses  of  the  monastic  orders  which 
ul>out  this  time  began  to  s|tring  up  throughout  England  \\vi\) 
not  only  places  of  retreat  for  those  who  by  their  condition  or 
inclination  were  un(itte<l  for  the  rudi;  and  warlike  life  of  tho 
times,  hut  wcva  also  the  sources  of  continual  almsgiving  to  tho 

'Co.  Lit.  44a,  '.iOOb;  10  Co.  liOh;  2  rations.  TO,  78,  108.  115;  Coniyns  Di- 
Kent,  CoiuiiL  L'27;  1  Kyil  on  CoriKj-    ge^t.  Franchise,  11,  15,  10,  17,  18. 


12013  LAW    OF   WILLS.  [§  840. 

poor  and  wretched.  This  latter  dass  was,  as  may  well  be 
imagined,  in  view  of  the  constant  j)rivate  warfare  that  was 
being  waged,  and  the  resulting  insecurity  of  life  and  property, 
both  numerous  and  widely  dispersed.  Poverty,  wretchedness 
and  disease  were  rife  on  every  hand.  The  wounded  and  ragged 
soldier  returning  from  the  wars,  the  lazy  professional  mendi- 
cant, too  indolent  to  labor  and  too  cowardly  to  rob,  the  escaping 
serf  pursued  by  his  master,  the  franklin  dispossessed  from  his 
freehold,  the  wandering  apprentice  seeking  a  new  and  perliaps 
a  better  master,  constituted  a  mass  of  miserable  and  wretched 
humanity  roaming  through  the  country.  Such  were  indeed 
vagrants  wandering  about  from  place  to  place  and  without 
visible  means  of  support.  To  a  certain  extent  the  necessities 
of  these  poor  people  were  relieved  by  the  doles  given  out  by 
the  steward  of  the  lord  of  the  manor.  But  failing  this  some- 
Avhat  uncertain  source  of  sustenance,  they  were  reasonably  sure 
that,  could  they  but  reach  the  door  of  the  monastery  or  the 
abbey,  their  physical  wants  would  be  relieved  by  the  benev- 
olence of  the  monks.  In  order  that  the  tide  of  almsgiving 
might  be  sustained,  it  became  necessary  for  the  ecclesiastical 
orders  to  acquire  and  cultivate  large  tracts  of  land  to  Fm-nish 
the  food  and  shelter  which  were  thus  dispersed  in  indiscrimi- 
nate almsgiving.  The  monastic  orders,  by  reason  of  tiie  spir- 
itual control  which  they  asserted  over  the  minds  of  the  feudal 
landlords,  speedily  acquired  large  holdings,  Avhich  natural  incli- 
nation and  the  necessity  of  their  situation  prompted  them  con- 
tinually to  increase.  Such  lands  thus  procured  were  taken  out 
of  the  market  permanently,  and,  as  Chancellor  Kent  puts  it, 
absorbed  by  the  ecclesiastics  in  perpetuity,  "  in  hands  that  never 
die."  Xot  only  was  this  true,  but  they  were  by  this  transfer 
absolutely  freed  from  all  public  and  feudal  charges.  The  tract 
of  arable  land  which,  when  its  landlord  was  a  knight  or  baron, 
supplied  a  half  dozen  stout  archers  or  men  at  arms  to  the  king, 
su])plied  no  military  help  whatever  when  its  owner  was  a 
bishop,  an  abbot  or  other  religious  corporation.  The  evil  at 
length  became  so  intolerable,  not  only  to  the  king,  but  to  the 
baronage,  who  saw  their  powers  threatened  by  this  gradual  but 
irresistible  absorption  of  the  landed  wealth  of  the  realm,  that 
as  early  as  the  time  of  Henry  III.  statutes  were  passed  designed 
to  check  this  absorption  of  the  land.     These  statutes  are  com- 


§  SJ:!.]  EULES    KEGULATIXG    CnAKITAELE    GIFTS.  1263 

monly  termed  the  statutes  of  mortmain.  The  operation  of  the 
earlier  statutes  was  confmed  to  forbidding  the  acquirement  of 
the  legal  title  to  lands  by  the  religious  orders.  But  these  astute 
men  having  by  means  of  uses  and  trusts,  by  which  the  legal 
title  purchased  by  them  was  held  by  lay  persons  for  their  ben- 
efit, evaded  those  statutes,  it  was  provided  by  subsequent  stat- 
utes that  lands  conveyed  to  a  third  person  for  the  use  of  any 
corporation  should  be  liable  to  forfeiture  in  like  manner  as- 
though  convej-^ed  directl}''  to  the  corporation.  And  the  sanYe 
statute  prohibited  lay  as  well  as  religious  corporations  from 
acquiring  lands.  The  statutes  of  mortmain,  properly  so  called, 
which  have  been  above  described,  and  the  statutes  against  su- 
perstitious uses,  which  are  somewhat  analogous,  have  not  been 
adopted  in,  the  United  States  of  America.  Their  origin,  raison 
(Vetre,  and  their  application  are  wholly  English.  They  have 
never  been,  either  expressly  or  by  implication,  extended  to  any 
English  colony.  They  were  local  in  their  character,  and  in- 
tended wholly  for  the  carrying  out  of  principles  exclusivel}'' 
applicable  to  local  necessities  and  institutions.^ 

^  841.  Statutory  liiiiitatioiis  upon  the  value  of  property 
which  can  be  owned  by  charitable  corporations. —  Though 
the  policy  which  was  at  the  basis  of  the  English  statutes  of 
mortmain  is  by  no  means  in  harmony  with  the  principles  of 
law  in  the  United  States  of  America,  no  one  doul^ts  that  it  is 
Avithin  the  power  of  a  state  legislature  to  limit  the  amount  of 
property,  either  real  or  personal,  which  a  charitable  corpora- 
tion may  own  and  employ  for  the  purposes  of  its  creation. 
This  is  usually  done  by  a  clause  in  the  charter  or  other  gen- 
eral statute  under  which  the  corporation  is  incorporated,  by 
which  the  cor])oration  is  authorized  to  take  title  to  real  and 
personal  property  up  to  a  certain  value  expressly  mentioned. 
Where  the  amount  of  the  property  which  a  ch;irital)le  corpo- 

12  Kent,  Comm.,  p.  228;  Viflal  v.  England    supposeil    to    liavo    been 

Oiranl,  2  How,  (U.  S.)  18U;  McCartee  meant  to  extend  to  lier  colonies  and 

V.  AHyluui,  y  Cow.  (N.  Y.)  437,  451;  were  never  in  force  in  tliose  of  them 

Wright  V.  Tnihtees,  1   Hoffman's  Ch.  in  America  whicli  heeame  iiide|KMid- 

CS.  Y.)  202;  I'otter  v.  Tliornton,  7  \L  1.  ent  states  l)ut  l»y  legal  enactment." 

2r,2;  B<"all   v.  Kox.  4  (Ux.  104;  2  Heil-  Perin   v.  Carey,  21   How.  (U.  S.)  4(5r), 

field  on  Wills,  510;  Story,  Ivjuity  Ju-  "lOd;  Odell  v.  Odell,  10  Allen  (Mass.), 

risprudence,  .t;   IHil.      "The   Knglish  1,7;  Dam/s  Ahr.  5,  2yb,  23y. 
stututcH  of  niortiuuin  were  never  in 


1 1^*34  LAW   OF   WILLS.  [§  841. 

ration  may  own  is  thus  expressly  limited  by  statute,  every  de- 
vise or  beijuest  is  voitl  so  I'ar  as  it  attempts  to  convey  to  it  the 
title  to  property  which  in  value  exceeds  the  limitation  men- 
tioned in  the  statute.  The  title  to  the  pro])erty  in  excess  of 
the  statutory  limit  does  not  vest  in  the  corporation,  for  the 
statute  has  deprived  the  corporate  beneficiary  of  all  capacity 
to  take  by  will  so  far  as  the  devise  exceeds  the  limitation  im- 
posed by  statute.  The  property  thus  invalidly  disposed  of 
passes  to  the  residuary  devisee,  in  case  there  is  a  residuary 
clause,  or,  if  there  be  none,  then  to  the  heirs  or  the  next  of  kin 
of  the  testator,  as  intestate  property. 

The  main  dilHculty  has  been  to  determine  by  whom  the  lim- 
itations imposed  by  the  statute  are  to  be  taken  advantage  of. 
It  is  well  settled  that  the  validity  of  a  testamentary  provision 
which  is  alleged  to  be  invalid  because  of  the  legal  incapacity 
of  a  charitable  corporation  to  take  cannot  be  determined  in 
any  collateral  proceedings.  But  upon  the  question  whether  a 
direct  proceeding  to  confirm  the  title  to  the  f)roperty  in  tho 
heirs  of  the  testator  can  be  initiated  by  them,  or  whether  it 
can  only  be  commenced  by  the  attorney-general  acting  for  tho 
commonwealth,  the  cases  are  at  variance.  In  New  York  and 
in  some  other  states  the  courts  have  held  that,  inasmuch  as  the 
title  to  the  property  vests  at  once  in  the  heirs  or  the  next  of 
kin,  they  may  raise  the  question  of  the  validity  of  the  bequest 
upon  the  ground  that  the  charitable  corporation  has  not  the 
capacity  to  take  because  the  statutory  limit  has  been  exceeded.' 
But  in  other  states,  where  limitations  have  been  by  statute  im- 
posed upon  the  value  of  the  propert}''  which  a  charitable  cor- 
]ioration  shall  be  permitted  to  hold,  it  has  been  held  that  the 
limitation  cannot  be  taken  advantage  of  by  the  heirs  or  next  of 
kin  of  the  testator  in  initiating  a  legal  proceeding.  The  stat- 
utory provisions  are  wholly  regulative  and  directory  in  their 
nature,  being  passed  by  virtue  of  the  inherent  power  possessed 
by  the  legislature  to  regulate  and  control  corporations,  and 
can  therefore  only  be  enforced  by  a  direct  proceeding  upon 
the  part  of  the  state  conducted  by  the  attorney-general.^ 

1  In  re  McGraw's  Estate,  111  N.  Y.  2Farington  v.  Putnam  (Me.,  1896), 

66,19  N.  E.  R  233;  Wood  v.  Ham-  37  AtlR.  632 :  Congregational  Cliurch 

niond,  16  R.   L  98,  17  Atl.  R.   324;  v.  Everett  (Md..  1897),  36  Atl.  R.  654; 

Barkley  v.  Donnelly  (Mo.),  19  S.  W.  De  Camp  v.  Dobbins.  29  N.  J.  Eq.  42; 

K.  23d.  Wade  v.  American  Col.  Soc,  15  Miss. 


§  S42.] 


EULES    EEGULATIXG    CHARITABLE    GIFTS. 


1265 


§  842.  Statutory  limitations  upon  the  times  of  cliaritablo 
gifts  by  will. —  In  many  states  statutes  have  been  enacted 
■which  substantially  provide  that  no  real  or  personal  estate  shall 
be  disposed  of  by  will  to  charitable  institutions,  and  in  some 
instances  to  private  persons  upon  charitable  trusts,  except  the 
will  shall  have  been  executed  at  least  thirty  da3's,  or  some  other 
particular!}'  mentioned  period,  before  the  decease  of  the  testa- 
tor.^ These  statutes  are  intended  to  restrain  the  power  of  tho 
testator  to  give,  and  not  the  capacity  of  the  corporation  to  take. 
Hence  they  are  applicable  to  devises  by  all  testtitors  who  are 
resident  within  the  jurisdiction  of  the  state  where  the  statute 
has  been  passed,  not  only  to  charitable  corporations  which  are 
domiciled  there,  but  also  to  gifts  to  foreign  charities.  They 
ought  to  receive  a  reasonable  construction.  Of  the  power  of  the 
legislature  to  place  these  and  similar  restrictions  upon  the  tes- 
tamentary power  there  can  be  no  question.  And  the  same  may 
^vith  truth  be  affirmed  of  those  enactments  which  limit  the  pro- 
portion of  his  property  which  a  testator,  leaving  a  wife  or  chil- 


(1846),  663;  Heiskell  v.  Chickasaw 
Lodge,  3  Pickle  (Tenn.),  668,  11  S.  W. 
R.  668.  Compare  United  States  v. 
Church  of  Jesus  Christ,  15  Pac.  R. 
475,  5  Utah,  361,  in  which  a  receiver 
was  appointed  upon  the  application 
of  the  attorney -general  of  the  United 
States  for  tlie  Mormon  church  where 
it  appeared  that  such  church  held 
j»roperty  largely  in  excess  of  the 
value  of  §50,000  which  had  been  fixed 
by  the  act  of  congress  of  July  1, 18G2, 
section  3,  as  the  amount  which  a  re- 
ligious society  could  hold  in  any  ter- 
ritory of  the  United  States.  See 
also  Gilmer  v.  Stone,  120  U.  S.  586,  7 
Sup.  Ct.  699.  Where  a  will  provides 
that  tlie  estate  of  the  testator  shall 
he  converted  into  personal  property 
and  l>e<pieath3  the  property  thus 
converted  to  a  coUege,  no  real  estate 
is  devi.wd  to  the  college  and  tho  gift 
is  not  within  the  terms  of  a  statute 
limiting  tlie  amount  of  real  proj*- 
erty  wiiicli  may  bo  owned  by  tlio 
«r,ll<.g<..  In  re  Mc(iraw,  111  X.  Y. 
66.  19  N.  K.  II.  233.  A  charil.ibl.-  in- 
80 


stitution  whose  charter  limits  the 
amount  of  property  wliich  it  can 
hold  may  take  only  as  much  of  that 
given  to  it  as  will,  with  the  amount 
it  owns  at  the  death  of  the  testator, 
make  up  the  maximum  amount  it 
could  then  hold.  An  amendment  to 
the  charter  procured  subsequently 
to  the  death  of  the  testator  will  not 
enable  it  to  take  the  residue  of  the 
property  given  by  the  wilL  Cogge- 
shall  V.  Home  for  the  Friendless,  18 
R.  I.  096,  31  Atl.  R.  694. 

1  Lefevre  v.  Lofevre,  59  N.  Y.  434; 
Fairchild  v.  Edson,  77  Hun,  298; 
Chamberlain  v.  Taylor,  105  N.  X.  185, 
630;  Carter  v.  Board  of  Education,  23 
N.  Y.  Supp.  95,  68  Hun,  434;  Kerr  v. 
Dougherty,  79  N.  Y.  327;  Hollis  v. 
Seminary,  95  N.  Y.  160;  In  re  Hilde- 
burn,  16  Piu  Co.  Ct  R  39;  Craig  v. 
Lilly  (Pa.,  1887).  9  Atl.  R,  171;  Price 
v.  Maxwfll.  28  PiU  St.  23.  See  also 
Wisconsin  Rev.  St.,  sec.  2039;  (Georgia 
Code,  sec.  2119;  New  York  Rev.  St., 
SH,  sec.  4;  Michigan  Cum.  l.a\vs,  sec 
2009. 


12CG  LAW   OF   WILLS.  [§  843. 

(In^n,  mav  dispose  of  to  cliaritablo  institutions.^  This  legislation 
is  designed  to  secure  to  the  wife,  children  and  dependent  par- 
ents of  the  testator,  a  suflficient  provision  for  their  maintenance 
out  of  the  estate  of  that  person  who  is  in  his  life-time  legally 
rcsjionsible  for  their  maintenance.  Though  the  statute  inval- 
idating bequests  to  corporations  by  wills  executed  within  a 
period  specified  may  not  refer  expressly  to  religious  corpora- 
tions, they  are  generally  understood  to  be  comprised  within 
their  provisions.'  A  statute  which  places  a  limitation  upon 
devises  to  corporations  which  are  incorporated  according  to  its 
]n'ovisions  has  of  course  no  application  to  foreign  charities,' 
nor  to  those  incorporated  under  oilier  statutes  of  the  same  state.* 
§  843.  Tlie  law  of  testamentary  charitable  gifts  in  New 
York. —  In  the  state  of  Xew  York  the  law  regulating  charities 
is  wholly  the  creation  of  statutory  enactments.  By  special 
charters  and  under  general  statutes  numerous  institutions  have 
been  created  for  all  the  charitable  uses  enumerated  in  the  stat- 
ute of  Elizabeth,  and  for  many  others  not  enumerated.  By 
virtue  of  these  statutes  such  corporations  have  capacity  to  take 
real  property  for  the  charitable  purposes  to  carry  out  which 
they  exist  under  the  incorporating  act.  The  courts  of  Xew 
York  hold  that  a  devise  of  land  to  a  religious  or  charitable  in- 
stitution to  aid  it  in  carryings  out  the  purposes  of  its  creation, 
either  by  spending  the  principal  or  only  the  interest,  does  not 

1  American  Bible  Society  v.  Healey  cept  the  same  be  done,  by  will  duly 

(Mass.),  26  N.  E.  R.  404;  Healy  v.  Reed,  executed,  at  least  thirty  days  before 

153  Mass.  97, 199;  Thompson  v.  Swoope,  the  decease  of  tlie  testator,  and  if  so 

24  Pa.  St.  474.  made  at  least  tliirty  days  prior  to 

-  In  re  Hewitt's  Estate,  94  Cal.  376,  such  decease,  such  devise  or  legacy, 
29  Pac.  R.  775;  Milwaukee  v.  Protes-  or  each  of  them,  shall  be  valid,  pro- 
tant  Home,  87  Wis.  409,  413;  In  re  vided  that  no  such  devises  or  be- 
Knight's  Estate,  28  Atl.  R.  303,  159  quests  shall  collectively  exceed  one- 
Pa.  St.  500.  third  of  the  estate  of  the  testator 

3  Doty  V.  Hendrix,  53  Hun,  48,  5  leaving  legal  heirs,  and  in  such  ca.se 

N.  Y.  S.  284.  a  pro  rata  deduction  from  such  de- 

<  Kavanagh's  Will,  26  N.  E.  R.  470,  vises  and  bequests  shall  be  made  so 

125  N.  Y.  418;  Cole  v.  Frost,  51  Hun,  as  to  reduce  the  aggregate  thereof  to 

578,  4  N.  Y.  Supp.  308.     In  California  one-third  of  such  estate,  and  disposi- 

the  statute  is  as  follows:  "No  estate,  tions  contrary  thereto  shall  be  voi<l 

real  or  personal,  shall  be  bequeatlied  and  go  to  the  residuary  legatee,  next 

or  devised  to  any  charitable  or  benev-  of  kin  or  heirs  according  to  law." 

olent  society,  or  to  any  person  or  per-  California  Code,  sec.  6313. 
sons  in  trust  for  charitable  uses,  ex- 


§   84:3.]  KULES    REGULATING    CHARITABLE    GIFTS.  12GT 

create  any  trust  w/iatevcr.  The  ownership  of  the  kind  is  abso- 
lute so  far  as  the  amount  within  the  possession  of  the  corpora- 
tion does  not  exceed  the  limitations  of  its  act  of  incorpora- 
tion. The  fact  that  the  testator  designates  the  purpose  for 
•which  the  property  given  to  the  corporation  is  to  be  used  does 
not  create  any  trust;  and  if  several  purposes  are  within  the 
scope  of  the  corporative  power,  it  would  seem  that,  according 
to  a  didum  in  a  late  case,  the  corporation  may  employ  the 
propert}^  given  for  any  one  of  them,  though  that  purpose  may 
differ  widely  from  that  named  by  the  testator.^  In  the  state 
of  Xew  York,  though  the  statutes  of  mortmain  have  been  ex- 
pressly repealed,  a  devise  to  a  corporation  of  land  for  charita- 
ble purposes,  though  directly  to  the  corporation,  and  stated  to 
have  been  given  to  it  for  charitable  purposes  which  are  within 
the  scope  of  their  powers,  is  absolutely  void,  and  the  land  goes 
to  the  heir  of  the  testator  not  charged  with  -an}-  trust  in  favor 
of  the  charity,  in  every  case  where  the  corporation  is  not  e.r- 
jyresshj  authorized  either  hy  its  charter  or  l>y  some  other  statute 
to  take  lands  hy  devise?  For  inasmuch  as  devises  to  corpora- 
tions, which  were  void  under  the  mortmain  acts,  were  validatetl 
in  England  only  by  virtue  of  the  statute  of  Elizabeth,  which 
had  been  expressly  repealed  in  Xew  York,  all  devises  direct  to 
corporations,  and  also  all  devises  in  trust  for  charitable  corpo- 
rations, are  absolutely  void  unless  the  corporation  in  question 
had  by  statute  the  right  to  take  by  devise.  Uut  these  rules 
have  no  application  to  bequests." 

•  Rir<l  V.  Merklee,  144  N.  Y.  544,  abolished  by  subjecting  them  to  tho 

551.  citing  Williams   v.  Williams,  8  provisions   of   tlie   revised    statutes. 

X.  Y.  525;  Holland  v.  Alcock.  1U8  N.  .     .     .     Practically  tlie  principal  ef- 

Y.  ;n2;  Wetmore  v.  Parker,  52  N.  Y.  feet  will  be  found  to  be.  tliat  lands 

458;  Le  Couteulx  v.  City  of  Buffalo,  cannot  be  granted  or  devised  so  as 

:}:}  N.  Y.  'i'-Vi.  to  rcmler  them  forever  inaIienabl(^ 

-'McCartee   v.   Orplian    Asylum,   9  without  tiie  assent  of  tlie  legislature, 

Cowen  (X.  Y.),  4.37,  409,  48:3.    See  also  unless  they  are  granted  or  devised  to 

Ayres  v.  M.  E.  Church,  IJ  Sandf.  (X.  Y.)  a  corporation  that  by  law  is  author- 

.'551.  yo.'}.  izeil   to  take  and   bound   to   retain 

2 In    tliis    case   tlio   court,    in   tho  them.     The  necessity  of  an  ajipfal 

course  of  a  most  thorough  discussion  to  tiie  legislature    .     .    .     we  cumuit, 

of  the  law  f>f  charitabUj  trusts,  says  regard   ;is   unmi.xed   evil.     When    a 

on    page  4<>!(:  "The   b«'iii«vol<'nco   tjf  ncnv  and  plainly  mt'ritorious  t-harity 

(Miristian  and  otln^r  philanthropists  is  meant  to  be  found(*d    .    «    .    none 

will  nr>t  be  unduly  restrained.    ...  of  us  can   fear  that  the  sanction  of 

Charitable  and  public   ases  are  not  the  Icgi.-jlalure  will  In,-  willilu-ld,  nor 


126S 


LAW    OF    WILLS. 


[§  S43. 


will  it  be  deemed  a  subject  of  just 
regret,  that,  when  the  aid  of  tlie  leg- 
islature is  required,  it  will  have  an 
opportunity  of  considering  whether 
the  claims  or  fair  expectations  of 
wives,  children  or  relations  have  been 
overlooked  and  sacrificed.  Under 
our  present  system,  as  we  suppose 
it  to  exist,  and  considering  the  re- 
straints that  are  now  laid  upon  cor- 
porations, their  incapacity  to  take  by 
devise,  and  the  limited  amount  of 
property  which  they  are  permitted 


to  hold,  we  need  not  the  English  stat- 
utes of  mortmain;  but  revive  the 
English  doctrine  of  charitable  and 
pious  uses  in  its  original  extent,  and 
the  necessity  of  such  statutes  will 
soon  be  apparent.  In  this  as  in  every 
country  in  which  such  uses  have 
been  suffered  for  a  time  to  prevail 
without  restriction,  there  will  be  an 
inundation  of  abuses,  which  the  ut- 
most power  of  the  legislature  will  be 
required  to  stem,  repel  and  over- 
come." 


CHAPTER  XLII. 


THE  CONSTRUCTION  AND  MEANING  OF  GIFTS  OVER  ON  DEATH 
WITHOUT  ISSUR 


§  844.  What  constitues  an  indefinite 
failure  of  issue. 

845.  A  conditional  or  determinable 

fee  is  created  where  the  fail- 
ure of  issue  is  a  definite 
failure  —  Conditional  fees 
distinguished  from,  estates 
in  fee  tail 

846.  The  estate  of  the  primary  dev- 

isee where  the  failure  of 
issue  is  a  definite  failure. 

847.  The  invalidity  for  remoteness 

of  an  executory  devise  of 
the  fee  on  an  indefinite  fail- 
ure of  issue  after  a  devise 
of  the  fee  simple. 

848.  The  failure  of  the  testator's 

issue  means  a  definite  fail- 
ure of  issue. 


§849. 


850. 


851. 


Definite  failure  of  issue  is 
meant  by  a  devise  over  on 
death  without  issue  under 
majority. 

A  definite  failure  of  issue  is 
meant  by  a  devise  over  to 
persons  then  surviving. 

The  meaning  of  the  failure  of 
issue  at  or  after  the  death 
of  a  primary  taker  of  the 
fee. 
852.  Presumption  in  favor  of  strict 
construction  in  case  of  per- 
sonal property. 

Cross-remainders  by  implica- 
tion after  the  failure  of 
issue  —  Devises  in  fee  and 
devises  in  tail  distinguished. 


853. 


§  844.  What  constitutes  an  indefinite  failure  of  issue. — 

A  devise  to  A.  and  his  heirs,  or  a  devise  in  equivalent  terms, 
gives  A.  an  estate  in  fee  simple  absolute.  If  the  testator,  after 
thus  creating  an  absolute  estate  in  A.,  shall  give  the  fee  to  an- 
other person  upon  the  death  of  A.  without  issue,  whether  th© 
terms  employed  are,  "if  he  die  Avithout  issue,"  "  witiiout  hav- 
ing issue,"  "  if  he  die  before  he  has  issue,"  "  if  he  have  no  issue," 
"in  default  of  issue,"  or  any  other  similar  lanij;un<^e,  the  ques- 
tion arises,  how  are  these  expressions  to  be  understood  and  con- 
strued ?  In  the  absence  of  statute  they  are  to  bo  taken  aa 
indicating  an  indefinite  failure  of  the  issue  of  the  lirst  devisee 
of  the  fee.  This  rule  of  the  coujmon  law,  though  it  may,  and 
indeed  often  does,  n-sult  in  disappointing  the  intention  of  tlio 
testator,  is  lo(j  \V(,'ll  settled  {>>  Ix?  shaken  of  <lep.ii'te(l  fi-(»m.'    The 

'Somlay'H  Case,  0  Co.  127;  King  v.  (Jhiipmari,  1  1'.  Wins.  (Hl.'{;  .Attoriiey- 
liiiriil.ail,  Cro.  .Iiie.  41H;  Hohiics  v.  (!<n<'ral  v.  Haylvy,  2  Jiro.  C.  C.  553, 
3Ieyuell,    T.    Jtiiyiii.    452;    I'ortli    v     57U;  D.iin  v.  Slater,  5  T.  It.  ;{:15. 


1270  LAW    OF    WILLS.  [§  84-J:. 

common-law  rule  that  "  dying  without  issue,"  or  any  phrase 
of  identical  meaning,  signifies  an  indefinite  or  general  failure 
of  issue  in  the  absence  of  a  controlling  context,  and  that  a 
limitation  over  thereupon,  after  an  estate  in  fee  simple,  is  void 
for  remoteness,  is  recognized  in  the  United  States  unless  abol- 
ished by  statutes  establishing  a  different  rule  of  construction/ 
In  view  of  this  rule  it  becomes  necessary  to  inquire  what  is 
meant  in  law  by  the  phrase  "  an  indefinite  failure  of  issued 
An  indefinite  failure  of  issue,  or  a  general  failure  of  issue,  is  a 
failure  of  issue  whenever  it  shall  happen.  Chancellor  Kent 
defines  it  as  a  failure  sooner  or  later,  without  any  fixed,  cer- 
tain or  definite  period  within  which,  or  at  the  end  of  which, 
it  must  haj)j)en-  If  the  failure  of  issue  is  an  indefinite  fail- 
ure of  the  issue  of  the  owner  of  the  fee,  it  cannot  happen  until 
<ill  Ids  issue  or  j^osterlty,  who  are  either  living  at  his  death,  or 
wJio  are  horn  at  any  time  thereafter,  Jtave  died.  It  will  not  hap- 
pen until  all  his  posterity  has  become  extinct.  The  law  can- 
not determine  in  advance  the  period  within  which  this  blotting 
out  of  the  issue  of  the  first  taker  shall  take  place,  in  order  that 
the  gift  over  on  the  happening  of  such  a  contingency  may  vest. 
"Where  the  first  taker  of  the  fee  dies  leaving  issue  surviving  at 

1  Moody  V.  Walker,  37  Ark.    198;  Pa.  St.  509;  Wynn  v.  Storey,  38  Pa. 

Watkinsv.  Quarles,23  Ark.  179;  Rob-  St.  166;  Mangel's  Appeal,  61  Pa.  St. 

erts  V.  West,  15  Ga.  122,  143;  Lilli-  248;  Kleppner  v.  Laverty,  70  Pa.  St. 

bridge  v.  Ross,  31  Ga.  730;  Voris  v.  70;  Snyder's  Appeal,  95  Pa.  St.  177, 

Sloan,  68  111.  588;  Fisk  t.  Keene,  35  181;  Hackney  v.  Tracy,  137  Pa.  St. 

Me.  349,  355;  Torrance  v.  Torrance,  4  53,  26  W.  N.  C.  464,  20  Atl.  R.  560: 

Md.  11;  Wallis  v.  Woodland,  32  Md.  Hoff's  Estate,  147  Pa.  St.  636;  Moor- 

104;  Dallam  v.  Dallam,  7  Har.  &  J.  head's  Estate,  180  Pa.  St.  119,  36  Atl. 

(Md.)  220;  Nightingale  v.  Burrell,  15  R.  647;  In  re  Pepper,  166  Pa.  St.  304, 

Pick.  (Mass.)  104;  Quigley  v.  Gridley,  31  Atl.  R  100;  Burroughs  v.  Foster,  6 

132  Mass.  37;  Gray  v.  Bridgefort,  33  R.  I.  534;  Arnold  v.  Brown,  7  R.  I. 

Miss.  344;  Chism  v,  Wallace,  29  Mo.  188;  Bailey  v.  Hawkins,  18  R.  I.  573; 

288;  Warden  v.  Allaire,  20  N.  J.  Law,  Magrum  v.  Piester,  16  S.  C.  323,  324; 

9;  Patterson  v.  Madden  (N.  J.,  1897),  Cruger  v.  Hay  ward,  2  Des.  (S.  C.)  94: 

33  Atl.  R.  41 ;  Dacies  v.  Steele,  38  N.  J.  Armstrong  v.  Douglass,  89  Tenn.  219, 

Eq.    170,   173;   Moffat  v.   Strong,   10  14  S.  W.  R.  604;  Randolph  v.  Wendel, 

Johns.  15;   Jackson  v.  Billinger.  18  4  Sneed    (Tenn.),   647;    Bowman    v. 

Johns.  (N.  Y.)  368;  Wilson  v.  AVilson,  Tucker,  3  Humph.  (Tenn.)  650;  Brat- 

32Barb.  (N.Y.)332;Mascykv.Vander-  tleboro  v.  Mead,  43  Vt.  556;  Sydnor 

horst,  1  Bailey  Eq.  (N.  C.)  48;  Brant-  v.  Sydnor,  2  Munf.  (Va.)  269;  Bells  v. 

ley  V.  Whittaker.  5  Ired.  (N.  C.)  L.  Gillespie,  5  Rand.  (Va.)  273;  William- 

225;  Rice  v,  Satterwliite,  1  Dev.  &  son  v.  Daniel,  12  Wheat.  (U.  S.)  569. 
Bat.  (N.  C.)  69;  Vaughan  v.  Dickes,  20 


§   S44.]  GIFTS    OVEK    ON    DEATH    WITHOUT    ISSUE.  1271 

his  death,  the  extinction  of  such  posterity  ma}''  take  place  within, 
a  few  months  or  a  few  years  after  his  death;  or  it  may  bo 
postponed  for  generations  thereafter.  For  this  reason  the  ex- 
ecutory devise  after  the  fee,  to  arise  on  an  indefinite  failure  of 
the  issue  of  the  devisee  of  the  fee,  is  absolutely  void.  To  hold 
otherwise  would  result  in  an  indefinite  suspension  of  the  power 
of  alienating  the  fee  in  the  lands  thus  disposed  of.  On  this  ac- 
count, if  an  estate  is  devised  to  A.  in  fee  simple,  with  a  lim- 
itation of  the  fee  to  another  after  an  indefinite  failure  of  the 
issue  of  A.,  the  limitation  over  is  an  executory  devise  of  a  fee 
Avhich  is  void  for  remoteness  of  vesting,  and  will  be  discarded, 
and  A.  will  take  an  estate  in  tail  by  implication  ^  arising  from 
the  provision  for  a  failure  of  issue.  This  rule  of  the  common 
law  no  doubt  resulted,  in  the  majority  of  cases,  in  overthrowing 
the  intention  of  the  testator.  The  intention  of  the  testator  in 
liraitino:  an  estate  over  after  a  fee  was  that  the  first  devisee 
should,  on  having  issue,  be  enabled  to  dispose  of  it  —  that  is,  that 
he  should  have  2).  fee  conditional;  and,  if  he  did  not  dispose  of  it, 
that  on  his  death,  leaving  such  issue,  they  should  take  it.  But 
Chancellor  Kent  says:  "  It  is  very  probable  that  in  most  cases 
the  testator  may  have  had  no  precise  idea  of  the  meaning  of 
the  words  other  than  that  the  estate  is  to  go  over  in  case  the 
first  taker  shall  leave  no  posterity  to  enjoy  it."  But  it  is  ab- 
surd to  assume  that  he  means  that  if  the  primary  tenant  in  fee 
shall  leave  a  child,  who  should  die  in  a  month  or  a  year  after- 
wards, the  remainder  should  go  into  effect.  The  general  in- 
tention of  the  testator  is  to  give  a  fee  simple,  or  a  fee  tail 
which  shall  descend  to  the  children  and  other  issue  of  the  first 
devisee,  to  be  under  their  absolute  control,  with  full  jiower 
of  alienation;  that  he  really  intends  to  suspend  the  i)()wer  of 
alienation  iini'd  the  intsue  nhall  become  extinct  is  an  absurd  sup- 
position.^ 

I  ^  471.  dren  tlien  over,  tlio  iiii|n  isoiiiinMit  in 

-  Death  or  dying  witliout  issue  or  tlie  state's  i»rison  of  sucli  person  for 

iKxlily  heirs  will,  in  the  absence  of  the  term  of  iiis  natural  life  will  not 

any  expreKsiou  of  intention  t<j  the  con-  vest  either  the  title  or  rij^lit  of  jhw- 

trary,  Ixj  conclusively  im-suined  to  session  to  the  executory  ilevise  prior 

refer  to  a  natural  and  physi(!ul  death  to   his   natural    death.     This   is   the 

without  issue  or  heirs.    Accordingly,  rule  in  New  Vcjrk,  where  it  is  provided 

in  tliecaseof  adeviHntoaiMjrw)ii,aiid  l»y  statute  that  a   prisoner  who  Ims 

ii|.oii  his  d(."atli  without  issue  or  chil-  hci-n   seiitericeil  t<>   a   life   imprison- 


1272  LAW    OF   WILLS.  [§  84:5. 

§  845.  A  eoiiditioiial  or  determinable  fee  is  created  where 
the  failure  of  issue  is  a  definite  failure  —  Conditional  fees  dis- 
tinguished from  estates  in  fee  tail. —  Where  the  faihire  of 
issue  attached  to  a  devise  in  fee  is  to  be  taken  as  signifying  a 
definite  failure  of  issue,  i.  e.,  the  death  of  the  first  taker  without 
leaving  issue  swviving,  the  estate  created  in  the  first  taker  is  a 
base  or  determinable  fee,  and  the  devise  over  is  an  executory 
devise  Avhich  is  to  vest  upon  the  happening  of  the  prescribed 
contingency.  On  the  other  hand,  if  the  failure  of  issue  referred 
to  is  to  be  construed  as  an  indefinite  failure  of  issue,  the  estate 
in  the  first  taker  is  an  estate  tail,'  which  may  in  the  United 
States  be  converted  into  a  fee  simple  by  statute,  and  is  then 
alienable,  the  devise  over  being  void.  In  view  of  these  well 
settled  rules  of  construction  it  may  be  well  in  this  place  to 
consider  briefly  some  of  the  elementary  principles  of  the  law 
of  real  property  appertaining  to  the  creation  and  nature  of 
base  or  determinable  fees  and  of  fees  simple  conditional  with 
which  they  are  often  confounded.  A  base,  qualified  or  deter- 
minable fee  is  defined  by  Chancellor  Kent  to  be  "  an  interest 
which  may  continue  forever,  but  which  is  liable  to  be  deter- 
mined by  some  event  or  act  or  circumstance  circumscribing  its 
continuance  or  extent."  ^  A  devise  of  the  fee  to  A.,  and  if  he 
shall  die  without  issue  surviving  then  over,  confers  upon  the 
first  taker  a  qualified  fee,  which  may  defeated  by  his  death 
without  leaving  issue  him  surviving.  In  that  event  the  exec- 
utory devise  vests.  If,  however,  he  shall  die  leaving  issue 
living  at  his  death,  the  fee  vests  in  such  issue,  who  take,  not  as 
purchasers  under  the  will,  but  by  descent  from  their  ancestor, 
and  the  executory  devise  expectant  upon  the  definite  failure 
of  issue  is  defeated.  The  owner  of  the  base  or  qualified  fee 
cannot  convey  in  fee  simple,  for  his  estate  is  defeasible  upon 
the  contingency,  i.  e.,  a  definite  failure  of  issue,  which  cannot 

nient  shall  be  deemed  civilly  dead,  an  end."   .    .    .    " The  estate  is  a  fee, 

Avery  v.  Everett,  110  N.  Y.  317,  18  N.  because  by  possibility  it  may  endure 

E.  R  148,  Earl  dissenting.  forever  in  a  man  and  his  heirs;  yet 

1  Ante,  %  471.  as  that  duration  depends  upon  the 

24  Kent,  Com.,  p.  9.     "A  base  or  concurrence    of    collateral    circum- 

qualified  fee  is  such  a  one  as  hath  a  stances,  which  qualify  and  debase 

qualification  subjoined  thereto,  and  the    purity   of  the    donation,   it   is 

■which  must  be  determined  whenever  therefore  a  qualified  or  base  fee."    2 

the  qualification  annexed  to  it  is  at  Black.  Com.,  p.  109. 


§  815.]  GIFTS    OVER   ON   DEATH   WITHOUT    ISSUE.  1273 

happen  until  liis  death.     Until  that  event  happens  it  cannot  be 
determined  in  whom  the  fee  will  ultimately  vest. 

A  base  fee  differs  from  a  fee  conditional  at  the  common  laAV, 
which  latter  was  a  fee  limited  to  some  jxirticular  descrijytion  of 
heirs  to  the  exclusion  of  others.  Thus  a  fee  to  A.  and  the  heirs 
of  his  body  was  a  fee  conditional  upon  A.  having  heirs  of  his 
body.  As  soon  as  A.  had  issue  born  to  him,  the  condition  was 
performed,  the  fee  became  absolute  in  A.,  and  he  might,  prior 
to  the  statute  De  Donis,  at  once  alien  the  land  absolutely  or 
charge  or  incumber  it  in  any  way.  The  first  taker  would  usu- 
ally alien  the  land  and  take  it  back  by  a  conveyance  to  himself 
and  his  heirs  general.  If  he  did  not  do  this,  the  course  of  de- 
scent was  not  changed  by  the  birth  of  issue.  The  fee  condi- 
tional could  not  descend  to  any  class  of  heirs  but  the  heirs  of 
the  body;  and  if  he  had  issue  who  did  not  survive  him,  the  fee 
reverted  to  the  donor  or  grantor.^  Because  of  the  almost  uni- 
versal custom  of  immediately  conve3"ing  the  fee  upon  the  birth 
of  issue,  and  taking  it  back  by  a  conveyance  in  fee  simple,  by 
which  the  possibility  of  a  reversion  was  forever  defeated,  the 
Statute  of  ^Yestminster  2d,  13  Edw.  I.,  c.  1,  was  enacted.  The 
effect  of  this  act  was  to  preserve  the  estate  to  the  issue  of  the 
first  taker,  and  on  the  other  hand  to  convert  a  mere  possibility 
of  a  reversion  into  an  actual  reversion  in  the  orio-inal  £:rantor. 
The  courts,  in  construing  this  statute,  would  not  permit  the 
alienation  of  the  fee  upon  birth  of  issue,  but  divided  the  estate 
into  two  parts;  one  of  which  was  a  sort  of  particular  estate  for 
life,  which  was  called  a  fee  tail,  with  a  quasi  contingent  re- 
mainder in  the  heirs  of  the  body,  and  a  reversion  expectant 
upon  an  indefinite  failure  of  issue,  in  the  grantor  and  his  heirs. 
These  elementary  principles,  while  in  most  cases  of  little  appli- 
cation in  the  United  States,  are  of  value  in  those  jurisdictions 
where  it  is  held  that  a  devise  in  fee  to  A.  with  a  devise  over  on 
a  failure  of  issue  gives  A.  a  fee  conditional  as  at  the  cuinmon 
law'.^ 

•  2  Black.  Com.,  p.  111.  forever.    Where  tlie  estiite  in  fee  is 

2  See  cases  in  ne.xt  section.    "  A  fee  granted  subject  to  some  condition  in 

Kimple  is  the  hirgest  estate  a  man  can  tlie  inKtrumi'Jit  creating  it,  or  to  some 

have  in  lands,  Ijeing  an  ahsfjlute  es-  condition  implied  by  law  to  hothere- 

tatein  p<'rpetuity.  The  essential  mat-  after  iti-rformed,  it  is  called  a  *condi- 

ter  istliat  siichan  estate  isso  hnnight  linnal  fee.'    A  'determinable  foo'em- 

into  existence  that  it  (/c/// <ontinue  braci-s  all  fees  which  are  determined 


1274 


LAW    OF    WILLS. 


[§  SiG. 


§  S4(i.  The  estate  of  tlio  ]>riinar.v  devisoo  Avliore  tlio  fail- 
ure of  issue  is  a  delinite  failure. —  A  limitation  of  a  fee  after 
ii  failure  of  the  issue  of  a  devisee  to  wiiom  a  fee  is  also  given, 
either  in  fee  simple  or  in  fee  tail,  is  valid  if  the  failure  of  issue 
■is  a  defnite  failure  of  issue;  i.  e.,  issue  living  at  the  death  of 
the  lirst  devisee.  If  from  the  language  of  the  will  itself  it  is 
evident  that  the  testator  tneant  a  definite  failure  of  issue  (and 
the  same  of  course  should  apply  Avhere  ly  statute  "die  without 
issue"  or  "death  without  issue"  is  to  be  construed  to  mean  a 
failure  of  issue  at  the  death  of  the  percon  taking),  and  the 
prnnary  devisee  has  a  fee,  whether  by  words  of  limitation  and 
inheritance  or  otherwise,  the  first  taker  will  have  a  base  or  de- 
terminable fee,  -which  is  defeasible  upon  his  death  without  leav- 
ing issue.  He  has  a  determinable  fee  (or  perhaps  more  properly 
ji  conditional  fee),  which  enlarges  into  a  fee  simple  in  his  issue 
if  he  shall  die  leaving  issue.  It  is  a  fee  conditioned  upon  his 
having  and  leaving  issue  at  his  death,  and  the  limitation  over  is 
valid,  not  as  a  contingent  remainder  limited  after  an  indefinite 
failure  of  issue,  but  as  an  executory  devise  of  a  fee  in  defeas- 
ance of  an  estate  in  fee  determinable.^     The  primary  devisee 


by  some  act  or  event  expressed,  in 
their  limitation,  to  circumscribe  their 
continuance,  or  inferred  by  law  as 
bounding  their  extent.  In  its  broader 
sense  a  determinable  fee  embraces 
wliat  is  known  as  a  conditional  fee. 
When  it  becomes  an  established  fact 
that  the  event  which  may  determine 
tlie  estate  will  never  occur,  a  deter- 
minable fee  enlarges  into  a  fee  simple 
absolute.  So,  when  the  condition 
upon  which  a  conditional  fee  rests 
has  been  performed,  the  estate  be- 
comes an  absolute  fee.'  "  Fletcher  v. 
Fletclier.  88  Ind.  420. 

iFlinn  v.  Davis,  15  Ala.  1-32,  1.36; 
Mason  V.  Pate,  34  Ala.  379;  Goldsby 
V.  Goldsby,  38  Ala.  404;  Newsoni  v. 
Holesapple,  101  Ala.  682, 15  S.  R.  644; 
Clark  V.  Stanfield,  38  Ark.  347;  Myar 
V.  Snow,  49  Ark.  125,  4  S.  R.  381; 
Hudson  V.  Wadsworth,  8  Conn.  348, 
362;  Williams  v.  McCall,  12  Conn. 
S28;  Smith  v.  Pendell,  19  Conn.  107; 
St  John  v.  Dann,  34  AtL  R  110,  113, 


66  Conn.  401;  Friedman  v.  Steiner, 
107  IlL  125;  Summers  v.  Smith,  127 
111.  645,  21  N.  E.  R.  191:  Waters  v. 
Bishop,  122  Ind.  516,  519;  Smith  v. 
Hunter,  23  Ind.  580;  Pool  v.  Penning, 
9  B.  Mon.  (Ky.)  623;  Thackston  v. 
Watson,  84  Ky.  206;  Martin  v.  Re- 
maker  (Ky,  1888),  9  S.  W.  R.  419; 
Marble  v.  Phillips  (Ky.,  1893),  20  S. 
W.  R.  306;  Webster  v.  Webster  (Ky., 
1893),  22  S.  W.  R.  920;  Collins  v. 
Tliompson  (Kj-.,  1897),  43  S.  W.  R. 
S27;  Wheatland  v.  Dodge,  10  Mete. 
(Mass.)  502;  Hawley  v.  Northampton, 
8  Mass.  3;  Webster  v.  Ellsworth,  147 
Mass.  002, 18  N.  E.  R.  569;  Bowker  v. 
Bowker,  19  N.  E.  R.  213,  148  ]\Iass. 
198;  Welch  v.  Brimmer,  47  N.  E.  R. 
699,  169  Mass.  204;  Backus  v.  Presby- 
terian Assembly,  77  Md.  50;  Lednunx 
V.  Cecil,  76  Md.  153,  24  Atl.  R.  4.52; 
Mason  v.  Johnson,  47  Md.  355;  De- 
vecmon  v.  Sliaw,  70  Md.  224,  16  Atl.  R. 
645;  Hutchins  v.  Pearce,  80  Md.  4.34, 
31   Atl.    R.  501,  502;    Weybright  v. 


§  S46.] 


GIFTS    OVKR    OX    DEATH    WITHOUT    ISSUE, 


ll>75 


cannot  convey  the  fee  so  as  to  bar  the  interests  of  his  issue 
living  at  the  date  of  the  conveyance  and  at  his  death,  nor  can 
he  by  a  conveyance  destroy  the  executory  devise  which  will 
take  effect  in  succession  upon  his  death  without  issue.  Hence 
there  is  a  suspension  of  the  power  of  alienation  for  his  life. 
Xor  will  the  general  rule  which  holds  that  an  unlimited  power 
of  disposal  in  the  first  taker  enables  him  to  defeat  the  devise 
over  apply  in  the  case  of  such  an  executory  devise,  for  it  is  ap- 
parent that  the  existence  of  a  devise  over  is  in  no  wise  depend- 
ent on  the  exercise  of  the  power,  but  rather  on  the  death  of 
the  devisee  without  any  surviving  issue.  All,  therefore,  that  the 
first  devisee  could  convey  during  his  life  is  his  defeasible  or 
conditional  fee,  and  his  grantee  takes  that  subject  to  defeasance 
by  the  executory  devise,  on  the  death  of  the  lirst  taker  without 
issue  him  survivino-.i 


Powell,  39  Atl.  R.  421,  8G  Md.  573; 
Goodell  V.  HibbarJ,  32  Mich.  -17,  53; 
Mulreed  v.  Clark  (Mich.,  1896),  68 
X  W.  R.  138:  Hall  v,  Chaffee,  14  N.  H. 
215;  O'Brien  v.  OLeary,  64  N.  H.  332, 
10  AtL  R.  697;  Den  v.  Snitcher,  14 
N.  J.  L.  53;  Den  v.  Allaire,  20  K  J. 
L.  6:  Seddell  v.  Wills.  20  N.  J.  L. 
223;  Kennedy  v.  Kennedy,  29  N.  J.  L. 
bo;  Groves  v.  Cox.  40  N.  J.  L.  44;  Neil- 
son  V.  Bishop,  17  AtL  R  962,  45  N.  J. 
E*^.  473;  Wilson  v.  Wilson,  46  N.  J. 
Eq.  321,  19  Atl.  R.  132;  Bonnell's 
ExTS  V.  Bonnell,  47  N.  J.  Eq.  540,  20 
Atl.  R.  895;  Wilkes  v.  Lion,  2  Cow. 
<X.  Y.)  333;  Jackson  v.  Billinger,  18 
Johns.  (N.  Y.)  368;  Roosevelt  v.  Tliur- 
man.  1  Johns.  Ch.  (N.  Y.)  220;  Norris 
V.  Beyea,  13  N.  Y.  273.  285;  Trustees 
V.  KelIo;;g,  16  N.  Y.  83.  87;  Tyson  v. 
BUike.  22  N.  Y.  558,  563:  Van  Home 
V.  Campliell.  100  N.  Y.  287,  3  N.  E  li. 
ai6.  771;  In  re  New  York.  K  &  W. 
K  R  Co.,  105  N.  Y.  89,  1 1  N.  E.  R.  492; 
Beck  V.  Enni.s,  7  N.  Y,  S.  201.  54  Hun. 
126;  Rinisay  v.  Do  Rcnier.  20  N.  Y.  S. 
143,  65  Hun.  212;  Sadler  v.  Wil.st»n,  5 
Ired  (N.  C.)  Kq.  296;  Davis  v.  I'arkcr. 
«9  N.  C.  271:  Smith  v.  Brisson.  90 
N,  C.  284;  Tn-xl.-r  v.  Holler.  107  N.  C. 
«17,  12  S.  E  R  288;  Bu<h:uiuji  v.  Bu- 


chanan. 99  N.  C.  308,  15  S.  E.  R.  430; 
Kelly  v.  Williams,  18  S.  E.  R  693, 113 
N.  C.  437;  Langley  v.  Heald,  7  W.  iS: 
S.  (Pa.)  96;  Hausell  v.  Ilubbell,  24 
Pa.  St.  244;  Covert  v.  Robin.sou,  46 
Pa.  St.  274;  Riehle's  Appeal,  54  Pa. 
St.  97;  Greenawalt  v.  Greenawalt, 
71  Pa.  St.  483:  Reinoehl  v.  Shirk,  119 
Pa.  St.  108,  12  Atl.  R  806:  In  re  Mil- 
lers Estate,  22  Atl.  R  1044.  145  Pa. 
St.  561,  29  W.  N.  C.  69;  In  re  Gorm- 
ley,  154  Pa.  St.  378,  25  Atl.  R  814; 
Burrough  v.  Foster,  6  R  I.  534;  In  i-e 
Swinlnirne,  16  R  I.  208.  14  Atl.  R 
850;  Cook  v.  Bucklin,  18  R.  I.  666.  29 
Atl.  R'840;  De  Wolf  v.  Middlelown. 
18  R  L  810.  26  Atl.  R  44;  Barney  v. 
Arnold,  23  Atl.  R  45,  15  R  I.  78; 
Whitworth  v.  Stuckey,  1  Rich.  E(i. 
(S.  C.)  404;  Hoy  v.  Hoy,  3  id.  384; 
CJordon  v.  Gordon,  32  s'  C.  .563.  11  S. 
E.  R  334;  Bethea  v.  Betliea.  48  S.  C. 
440.  441,  26  S.  W.  R,  716;  Ryan  v. 
:\I(jnaghan.  99  TtMin.  338.  42  .S.  W.  R 
111;  .Stones  v.  Maney,  3  Tenn.  Ch. 
731;  First  Nat.  Bank  v.  Dc  I'auw.  75 
Fed.  R.  775;  Britlon  v.  Tiioriiton.  112 
U.  S.  526,  5  S.  Ct.  291:  Bariu-r  v.  Kail- 
road  Co..  17  S.  (.'{..  iHH,  .11»3;  Rjindall 
V.  J«.sM.|yn.  59  Vt.  557.  10  Atl.  R  577. 
'  Si'c  cases  cited  in  last  note.     If 


1276  LAW  OF  WILLS.  [§  847. 

I 

§  847.  The  invalidity  for  remoteness  of  an  executory  de- 
Tise  of  the  fee  on  an  indefinite  failure  of  issue  after  a  devise 
of  the  fee  simple. —  An  executory  devise  of  the  fee  which  is 
to  vest  in  interest  and  possession  after  the  hidefinite failure  of 
the  issue  of  a  person  to  whom  ax>rior  estate  in  fee  sim])le^  not  in 
fee  tail,  is  given,  is  a  conditional  limitation  which  is  void  for 
remoteness.  The  indefinite  failure  of  issue  may  never  take 
place  at  all,  or  it  may  not  take  place  until  the  expiration  of 
the  period  within  which  the  fee  must  become  alienable'  under 
the  rule  forbidding  perpetuities.  Until  the  issue  of  the  first 
taker  of  the  fee  has  become  wholly  extinct,  the  executory  de- 
vise of  the  fee  does  not  vest.  The  primary  devisee  can  only 
convey  a  defeasible  fee,  which  is  to  come  to  an  end  upon  an 
indefinite  failure  of  his  issue.  And  until  that  event  takes  place 
the  executory  devisee  cannot  convey  the  fee,  for  until  then  his 
interest  is  wholly  contingent.  There  is  therefore  no  person  in 
existence  who  possesses  the  power  of  making  an  absolute  con- 
veyance of  the  fee  simple  of  the  property.  On  the  other  hand, 
an  executory  devise,  or  a  contingent  remainder  coming  after 
an  estate  tail,  though  dependent  upon  the  general  or  indefinite 
failure  of  issue  of  the  tenant  in  tail,  is  not  invalid  for  remote- 
ness of  vesting,  because  the  tenant  of  the  estate  tail  has  full 
power  at  any  time,  by  suffering  a  common  recovery,  to  convey 
the  estate  tail  and  to  bar  all  subsequent  limitations.^ 

there  is  a  devise  of  land  to  A.  in  fee  over  is  therefore  valid  as  an  exeen- 
simple,  witli  a  devise  of  the  fee  to  tory  devise  of  the  fee  under  the  stat- 
B.  upon  tlie  failure  of  A.'s  issue,  and  ute  of  wills,  but  not  as  a  contingent 
it  appears  that  a  definite  failure  of  remainder  at  the  common  law,  for  a 
A.'s  issue  was  meant;  i.  e.,  that  A.  contingent  remainder  cannot  at  com- 
shall  die  leaving  him  surviving  no  mon  law  be  limited  after  a  fee.  Mc- 
issue,  the  devise  of  the  fee  to  B.  is  Leod  v.  Dill,  9  Fla.  427;  Glover  v. 
valid  as  an  executory  devise.  The  Condell,  163  111.  56G,  45  N.  E.  R.  173; 
future  estate  devised  to  B.  cannot  be  Strain  v.  Sweeney,  163  111.  603,  45  N. 
impeached  for  remoteness  of  vesting,  E.  R.  201;  Davenport  v.  Kirkland. 
for  the  fee  will  vest  absolutely  in  156  111.  169;  Smith  v.  Kimball.  153 
any  event  at  the  death  of  A.  A.  111.  368,  38  N.  E.  R.  1029;  Jones  v. 
takes  a  base  or  conditional  fee,  which  Sotheran,  10  Gill  &  J.  (Md.)  259;  Pat- 
on  his  death  leaving  issue  vests  in  terson  v.  Madden  (N.  J.  Eq.,  1896),  36 
tiiem  absolutely  as  a  fee  simple,  and  Atl.  R.  273;  Armstrong  v.  Douglass, 
is  then  alienable.  On  the  other  hand,  89  Tenn.  219,  and  cases  cited  in  note 
if  he  die  leaving  no  issue,  the  execu-  1,  p.  1274.  See  also  g§  875-878. 
tory  devise  of  the  fee  vests  at  once  i  ^  882. 
in  the  devisee  over.     The  limitation  2  Post  v.  Rohrbach,  142  111.  600,  32 


§§  84S,  84:9.]       GIFTS    OVEK    ON    DEATH    WITHOUT    ISSUE.  1277 

§  8i8.  The  failure  of  the  testator's  issue  nieaus  a  definite 
failure  of  issue. —  A  testator  wlio,  having  no  issue  when  he 
Q/iaJces  his  icill,  devises  land  to  A.  "  in  default  of  issue  of  him- 
self," means  a  definite  failure  of  his  own  issue.  He  means  if 
he  shall  leave  no  issue  at  his  death  the  land  is  to  go  to  A.  The 
devise  to  A.,  though  a  contingent  devise,  is  immediate  and 
upon  condition,  and  is  to  vest  at  once  in  A.  upon  the  death  of 
the  testator  if  he  leave  no  issue,  and  to  be  at  once  defeated  if  ho 
leave  issue.  The  devise  to  A.  is  not  a  future  gift  by  way  of  a 
contingent  remainder  after  a  fee  tail,  or  an  executory  devise 
after  a  fee  which  may  possibly  be  invalid  for  remoteness.^ 
Some  of  the  cases  place  reliance  upon  the  fact  that  the  testa- 
tor has  no  issue  when  he  makes  the  will.  But  where  he  had 
issue  then  living  who  survived  him,  the  same  construction  has 
been  had.  Thus  where  the  testator,  having  several  sons  and 
one  daughter  living  at  the  date  of  his  will,  and  also  at  his 
death,  devised  to  A.  a  reversion  to  which  he  was  entitled  under 
a  marriage  settlement  upon  the  death  of  his  children  "  in  case 
of  failure  of  issue  male  of  his  body,"  the  court  decided  that  a 
failure  of  issue  at  the  death  of  the  testator  w^as  meant,  and 
that  the  gift  to  A.  was  a  valid,  immediate  gift,  and  not  an  ex- 
ecutory devise  upon  an  indefinite  failure  of  issue.-  The  cir- 
cumstances of  the  testator's  family  should  always  receive  full 
attention,  and  may  indicate  what  estate  he  meant  to  go  to 
the  issue  in  case  he  left  any  surviving.  And  it  may  also  be  re- 
membered that  if  the  testator  is  unmarried  when  he  makes 
his  will,  his  subsequent  marriage  and  birth  of  issue  may,  by 
revoking  the  will,  render  its  construction  wholly  unnecessary. 

§  849.  Definite  failure  of  issue  is  meant  by  a  devise  over 
on  death  without  issue  under  majority. —  The  words  "dying 
witliout  issue"  undouljtedly  mean  dying  without  issue  surviv- 

N.  E.  R.  087;  Fisk  v.  Keene,  18  Pa.  Badger  v.  Lloyd,  1  Salk.  232;  Monro 

St  72;  Malcolm  v.  Malfolin,  3  Cush.  v.  Parker,  1  Lord  Raymond,  37;  Car- 

(Mass.)  472;  Niglitingalo  v.   Burrell,  ter  v.  lientall,  2  Peav.  o")!;  Lepplo  v. 

l.j  Pick.  (MasH.)  104;  Condict  v.  King,  Ferrard,  2  My.  &  Russ.  378. 

13  N.  J.  Erj.  47.',;  Wright  v.  Brown,  >  French  v.  Ca.ldell.  3  B.  P.  C.  Tond. 

116  X.  (;.  20,  22  S.  K.  R  313;  Toman  2."i7;    Wclliiigtou    v.   Wellington,    4 

V.  Diirdoj),  IS  Pju  St.  72;  Haines  v.  Burr.  210.",. 

Witmer,  2  Yerg.  (Tenn.)  400;  In  ro  -'Sunford  v.  Irhy,  3  B.  &  Aid.  O.'il; 

Ix,wman,  2  Ch.  348,  12  Re[H,rt,  302;  In  ru  Rye's  Settlement,  10  Uare,  100. 

Fi.Hher  v.  Webster,  L.  R  14  Ivj.  2«.'!; 


1278  LAW    OF    -WILLS.  [§  S50. 

inrr,  wliore  the  doatli  without  issue  is  to  take  place  during  the 
minority  of  the  j^'iniary  devisee  of  the  fee.  Thus  a  devise  to 
A.  ill  \\h\  l)ut  if  he  shall  die  without  issue  and  under  twenty-one 
years  of  a(ji\  then  over,  gives  A.  a  defeasible  fee,  with  an  execu- 
tory devise  over  on  a  definite  failure  of  issue,  which  only  vests 
in  case  oF  the  happening  of  hoth  events.  The  fact  that  death 
without  issue,  to  vest  the  devise  over,  must  necessarily  take  place 
Itcfore  A.  attains  majority,  shows  that  death  with  a  delinito 
failure  of  issue  is  intended.  If,  therefore,  A.  attains  his  major- 
ity, or  dies  under  twenty-one  years  of  age  leaving  issue,  the 
devise  over  is  defeated,  and  the  fee  becomes  a  fee  simple,  in 
the  first  case  in  A.,  and  in  the  other  case  in  his  issue.  And  as 
has  been  elsewhere  explained,^  if  the  direction  is  in  case  of  A.'s 
death  under  age,  or  without  issue,  the  courts  will  substitute  the 
word  "  and  "  for  "  or  "  to  carry  out  the  evident  intention  of  the 
testator  that  A.  and  his  issue,  if  he  leave  any,  shall  benefit.- 

§  850.  A  definite  failure  of  issue  meant  by  a  devise  over 
to  persons  then  surviving. —  If  the  devise  over  on  a  failure  of 
the  issue  of  a  devisee  in  fee  is  to  the  survivor  or  survivors  of  a 
class  of  which  the  primary  devisee  is  a  member,  it  will  of 
necessity  be  presumed  that  the  testator  must  have  meant  a 
definite  failure  of  issue.  This  would  be  the  case  wdiere  the  tes- 
tator gives  property  in  fee  to  his  sons,  and  on  the  death  of  any 
to  his  issue,  and,  if  either  should  die  without  issue,  his  share  to 
the  survivors.  And,  aside  from  this,  the  fact  that  a  limitation 
over  on  a  failure  of  issue  is  to  a  person  living  at  the  death  of  the 
testator,  and  that  it  will  vest,  if  at  all,  during  the  period  of  a 
life  or  lives  in  being,  will  prevent  any  objection  being  raised 
to  the  gift  upon  the  grounds  of  remoteness  of  vesting.  In  such 
case  the  first  taker  has  a  fee  defeasible  on  his  death  without 

1  See  §  366.  1798),  184, 185 ;  Hinde  v.  Lyon,  3  Leon. 

•■^Tennell  v.  Ford,  30  Ga.  707;  Say-  64;  Eastman  v.  Baker,  1  Taunt.  174, 

ward  V.  Sayward,  7  Me.  175,  181,  182;  and  cases  cited  in  §  366.     The  same 

Raborg  v.  Hammond,   2  id.  42,  54;  nile  is  applied  where  "dying  witli- 

Kay  V.  Enslin,  3  Mass.  53.54;  Hunt  out  issue"  is  used  in  connection  with 

V  Hunt,  11  Met.  (Mass.)  88;  Prosser  "dying  without  leaving  a  husband 

V  Hardesty,  101  Mo.  593;  Shimer  v.  or  wife;"  and  where  there  is  a  de- 
Sliimer,  50  N.  J.  Eq.  300:  HaiTison  vise  over  in  case  the  first  devisee  of 
V.  Bo  we,  3  Jones'  (N.  C.)  Eq.  478,  the  fee  shall  die  either  before  or 
481;  Kelso  v.  Dickey,  7  W.  «&  S.  (Pa.)  after  attaining  his  majority.  Glover 
279;    Brewer  v.   Opie,   1   Call   (Va.,  v.  Monckton,  3  Bing.  13. 


§  851.] 


GIFTS    OVER    OX    DEATH    WITHOUT    ISSUE. 


12  71) 


issue  surviving,  with  an  executory  devise  over,  which  vests  in 
possession  upon  his  death  without  issue  him  surviving.' 

§  851.  The  meaning  of  the  failure  of  issue  at  or  after  the 
death  of  the  primary  taker  of  the  fee. —  AVhether  a  lim- 
itation over  expressly  in  terms  "  on  the  death  "  of  the  life  ten- 

1  Williams  v.  Graves,  17  Ala.  G2;  455;  Gish  v.  Moomah,  89  Va.  345,  15 

Clark  V.  Terry,  34  Conn.  176;  Burton  S.  E.  R.  868;  Jackson   v.  Chew,  13 

T.  Beach,  30  Ga.  638;  Atwell  v.  Bar-  Wheat.  (U.  S.)  153.  163;   Lippett  r. 

ney,  Dudley  (Ga.),  207:  Daniel  V.  Dan-  Hopkins,  1  Gall.  460;  Lewis  t.  Clai- 

iel,  28  S.  E.  R.  167,  168  (Ga.);  Sum-  borne,  5  Yerg.  369:  Turner  v.  Ivie,  5 

mers  v.  Smith,  127  111.  645.  21  N.  E.  R.  Heisk.  (Tenn.)  232;  Williams  v.  Tur- 

191;  Kellett  v.  Shepard,  139  III.  433,  ner,  10  Yerg.  (Tenn.)2S9:  Greenwood 

28  N.  E.  R.  751:  Lombard  v.  Witbeck,  v.  Verdon.  1  K.  &  J.  74.     In  tlie  last 


173  111.  396,  51  N.  E.  R,  61 ;  Pate  v. 
French,  23  N.  E.  R.  673.  122  Ind.  10; 
Deboe  v.  Lewen,  8  B.  Mon.  (Ky.)  616; 
Louisville  Ass'n  v.  Trust  Co.  (Kv.), 


case  cited,  the  court,  by  Wood,  V.  C, 
says:  "When  the  gift  is  upon  the 
death  of  the  first  taker  witliout  issue 
to  the  then  surviving  legatees,  that 


29  S.  W.  R.  866;  Hall  v.  Priest.  6  Gray  is,  to  those  persons  named  in  the  will 

(Mass.),  18;  Gray  v.  Bridgforth,  4  Geo.  who  should  then  be  surviving,  it  can- 

(Miss.)  312;  Rucker  v.  Lambdin,  20  notbea  transmissible  interest  wliiclt 

Miss.  31  (1849):   Naylor  v.  Godnian,  is  given  to  them;  and  the  onlj- inter- 

109  Mo.  543,  19  S.  W.  R.  56;  Faircliild  est  v.-liich  they  could  take  must  be 

V.    Crane,  13  N.  J.   Eq.   105;  Den  v.  one  which  would  accrue,  in  their  sur- 

Cook,  7  N.  J.  L.  41;  Sherman  v.  Sher-  vivingthe  specified  period,  and  thei'e- 

man,  3  Barb.  385;  Dumond  v.  String-  fore  it  must  necessarily  be  a  personal 

ham,  26  Barb.  (N.  Y.)  104;  Cutter  v.  benefit  that  was  intended  for  those 

Doughty,   23  Wend.   513:    Moffatt's  legatees:  and  the  period  at  which  it 

Ex'rs  v.  Strong,  10  N.  Y.  11,  12;  Nor-  was  to  take  effect  bemg  upon  the 

ris  V.  Beyea,  13  N.  Y.  273;  Chrystie  failure  of  the  issue  of  a  preceding 

v.  Pliyfe.  19  N.  Y.  345;  ZollicofTer  v.  devisee,  I  cannot  regard  the  limita- 

ZollicofFer,  4  Dev.  &  Bat.  (N.  C.)  L.  tion  as  pointing  to  an  indefinite  fail- 


43M:  Baird  v.  Winstead  (N.  C.  1898), 
31 S.  E.  R.  390;  Beasley  v.  Whitehurst, 
2  Hawks  (N.  C).  437;  Bird  v.  (Jillam 
(N.  C,  1898),  31  S.  E.  R.  267;  Thread- 
gill  V.  Ingram,  1  Ired.  (N.  C.)  L.  577; 


ure  of  issue,  but  a  failure  whicli 
might  take  place  in  the  life-time  of 
those  legatees  named  in  the  will." 
A  devise  to  a  son,  "his  lieirs  and  as- 
signs, forever,"  is  limiteil  by  another 


Deihl  V.  King,  6  Serg.  &  R.  32;  Rapp  clause  in  the  will  providing  that,  "in 
V.  Rjipp,  0  Pa.  St.  49;  Lapsley  v.  La])s-  case  of  the  decease  of  any  one  of  my 
ley,  9  Pa.  St.  130:  Cahlwell  v.  Skilton,     said  children  without  issue  living  at 


13  Pa.  St.  152:  Wall  v.  Mc(Juire,  24 
Pa.  St.  24N;  Bedford's  -Appeal.  40  Pa. 
St  18;  Sh.M-fs  Appeal,  -52  Pa.  St.  257: 
Ingerw.ll's  Api.eal,  H6  Pa.  St.  24(»; 
Manchi'ster   v.   Durfee,   5   R.   J.  549; 


the  time  of  such  decease,  the  devise 
or  Ijequest  given  to  such  child  I  give 
and  be(iueath  in  e(pial  shares  to  the 
surviving  brothers  or  sisters  of  said 
de(!eased;"  and.  on  tlie  death  of  tlu> 


Ijowry  v.  O'Brien,  4  Rich.  Kq.  (S.  C)  son  without  issue,  tii(<  land  devis(;(l 

262;  Cox  v.  Buek,  5  Rich.  (S.  C.)  604;  to  him  passes  in  e(pial  shares  lo  his 

M'KJorkJo  V.  Black,  7  liich.  L.  (S.  ('.)  brothers    and     sisters    then     living. 

407;  Hydnor  V.  Sydnor,  2  Miuif.  (Va.)  O'Brien   v.  O'Leary,  <il   N.  11.  332,  10 

263;  Curdle  v.  Cordle,  0  Munf.  (Va.)  All.  R.  097. 


12S0  LAW    OF    WILLS.  [§  851. 

ant,  in  case  lie  shall  die  without  issue,  means  a  definite  or  in- 
definite failure  of  issue,  has  been  much  discussed.  As  regards 
real  estate,  the  limitation  over  to  A.  and  his  heirs,  and  if  A. 
should  die  without  issue  then  '■^on  his  death,''''  or  "after"  his  death, 
a  devise  of  the  fee  to  another,  it  was  held  that  A.  took  a  fee 
simple  conditional,  with  an  executory  devise  over  on  a  definite 
failure  of  issue  hira  surviving.^  But  in  other  cases  where  the 
language  of  the  will  was  similar,  the  direct  contrary  of  this 
was  held.'^  So  wiiere  the  devise  was  to  A.  in  fee,  and  '■'^  after 
his  death "  to  another  in  case  he  should  leave  no  issue,  the 
courts  decided  that  "  after  his  death,"  "  at  his  death,"  or  simi- 
lar words,  did  not  point  out  a  definite  failure  of  issue,  but  they 
meant  an  indefinite  failure  of  issue,  and  that  A.  took  an  estate 
tail  by  implication.  But  on  the  other  hand,  the  words  at  or 
after  the  decease  of  A.,  the  first  devisee,  are  permitted  their  full 
operation,  in  a  disposition  of  personal  property,  as  showing  that 
a  definite  failure  of  issue  was  intended.  Thus  in  an  early  case ' 
where  chattels  were  given  to  a  person,  and  "  after  her  decease,''^ 
if  she  should  die  without  issue,  to  another,  the  words  meant 
"  dying  without  issue  surviving;  "  and  this  authority  has  been 
followed  in  many  English  decisions  where  the  words  "  after," 
"  immediately  after,"  or  "  at  the  death  of,"  have  been  employed 
in  disposing  of  personal  property.*  It  is  very  well  settled  that 
the  word  "then"  coming  after  a  failure  of  issue  does  not 
have  the  effect  of  making  it  a  definite  failure  of  issue.  Thus, 
in  the  case  of  a  limitation  if  A.  should  die  without  issue,  the 
words  "then  and  in  that  case"  are  not  restrictive.  The  word 
"  then  "  is  not  an  adverb  of  time,  but  a  conjunction  connect- 
ing the  two  limitations,  meaning  not  "  at  that  date,"  but  "  in 
that  event,"  or  "  if  that  happens,"  that  is,  if  it  happens  there 
is  a  failure  of  issue.* 

iKing  V.  Frost.  3  B.  &  A.  546;  Ex  sper  Lord  Brougham,  Campbell  v. 

parte  Davies,  2  Sim.  (N.  S.)  114.  Harding,  2  R.  &  My.  411;  Pye  v.  Lin- 

2  Jones  V.  Ryan,  L.  R.  9  Ir.  Eq.  249;  wood,  6  Jur.  619;  Josetti  v.  McGregor, 
Waiter  v.  Drew,  Com.  R.  373;  Doe  d.  49  Md.  202,  213;  Cliism  v.  Williams, 
Cook  V.  Cooper,  1  East,  229.  29  Mo.  288,  298;  Mathews  v.  Daniels, 

3  Pinbury  v.  Elkin,  1  P.  W.  2  Vern.  1  Murpli.  (N.  C.)  42;  Porter  v.  Ross, 
758,  766,  Pre.  Ch.  483.  2  Jones'  (N.  C.)  Eq.  196;  Clifton  v. 

*  Stratton  v.  Payne,  3  B.  P.  C.  Toml.     Haig,  4  Des.  (S.  C.)  330. 
99;  Wilkinson  v.  Smith,  7  T.  R.  555. 


§§  852,  853.]       GIFTS    OVER   ox    DEATH    WITHOUT   ISSUE.  1281 

§  852.  Presumption  in  favor  of  restricted  constrnction 
in  case  of  personal  property.—  The  rule  of  law  by  which  the 
phrase  "  death  without  issue  "  is  construed  to  be  an  indefinite 
failure  of  issue  is  so  technical  that  the  courts  will  seize  upon 
any  facts  or  circumstances  to  take  a  will  out  of  its  operation. 
The  presumption  that  the  testator  intended  an  indefinite  fail- 
ure of  issue  is  onl}^  recognized  where  the  will  is  absolutely 
silent.  And  if  it  shall  clearly  appear  from  the  will  that  ho 
meant  a  failure  of  issue  living  at  the  death  of  the  parent,  his 
intention  will  be  permitted  to  go  into  effect.  The  same  lan- 
guage which  would  in  the  case  of  real  jprojperty  be  construed 
as  creating  an  indefinite  failure  of  issue,  will  in  the  case  of 
personal  jproperty  be  taken  as  indicating  a  failure  of  issue  sur- 
viving the  first  tenant.^ 

§  853.  Cross-remainders  by  implication  after  failure  of 
issue  —  Devises  in  fee  and  devises  in  tail  distinguished. — 
Where  the  testator  devises  land  to  A.  and  B.  as  tenants  in  com- 
mon in  fee  tail,  with  a  devise  over  on  an  indefinite  failure 
of  issue  of  hoth  A.  and  B.,  the  law  raises  cross-remainders  by 
implication  as  between  them.  For  where  a  devise  is  to  two  or 
more,  as  to  A.  and  B.  as  tenants  in  common,  and  to  the  heirs 
of  their  bodies,  and  a  devise  to  C.  on  the  failure  of  issue  of 
both  A,  and  B.,  the  gift  over  will  take  effect  only  upon  the  fail- 
ure of  tfte  issue  of  all?  Hence,  on  the  death  of  any  of  them 
without  his  leaving  issue,  to  whom  alone  (and  not  to  his  heirs 
general)  his  share  would  descend,  an  intestacy  would  exist 
as  to  his  share  from  the  moment  of  his  death  down  to  tho 
death  of  the  last  survivor  without  issue.  If  the  whole  prop- 
erty is  not  to  go  over  to  the  remaindermen  until  all  th^.  devisees 
fuive  died  without  issue,  there  would  be  no  disposition  of  tho 
share  of  the  first  one  dying  in  case  he  did  not  leave  issue  who 
could  take  from  him.   This  reasoning,  of  course,  does  not  apply 

iClag^et  V.  Worthington,  3  fJill,  Rich.   (S.   C.)    Eq.   202;   Marshall   v. 

8.3;  E.leien  v.  Middleton,  9  Gill,  IGl;  Rives,  8  Rich.  (S.  C.)  85;  I'ritchctt  v. 

UHilton  V.  Usilton,  3  Md.  Ch.  Dec.  36;  Cannon,  10  Rich.  Etj.  3SM;  Hruiiunct 

WcKjdIand  v.  Wallis,  «  Md.   Vtl;  Al-  v.  Barber,  2  Hill  (S.  C).  r)l3,  TM. 

lender   v.   Siissiin,  33  Md.   11;  More-  ^  Doe  d.  Gorges  v.  Webb,  1  Taunt 

hoaso  V.  Ojlluiul,  2  Ziib.  430;  Porter  231;  Powell  v.  Howrlls.  k  R,  3  (^.  R 

V.    Ross,   2   Jones'   (N.    C.)   Va\.    10(5;  (;."..');  ILiririaford  v.  llaunalord,  L.  I^. 

Clapp  V.   yr.glcriian.   1   Dev.   <k   Pat.  7  (^>.  P.  IHi. 
(N.  C.)  Va{.    lOO;  Perry  v.    Logan,  5 
81 


l-2^2  LAW    OF    WILLS.  [§  853. 

at  all  where  the  first  devisee  has  a  fee  simple  in  the  real  prop- 
erty or  an  absolute  interest  in  the  personal  property;  for  the 
testator  has  parted  with  all  his  interest  absolutely  to  each  of 
the  primary  devisees,  vj)on  the  i^ole  cundition  that,  in  case  they 
shall  all  die  without  issue,  it  shall  then  go  over  to  another. 
Each  and  all  take  a  qualified  or  determinable  fee,  which  is  ab- 
solute in  the  heirs  of  each  of  them  upon  his  death  leaving 
issue,  and  in  that  event  the  executory  devise  over  is  defeated. 
Hence  the  share  of  any  devisee  d3''ing  without  issue  will  go  to 
his  heirs  or  personal  representatives  until  all  shall  have  de- 
ceased without  leaving  issue,  when  it  will  go  to  the  executory 
devisee,  or  until  some  one  of  them  has  died  leaving  issue,  in 
Avhich  event  the  determinable  conditional  fee  becomes  an  ab- 
solute fee  simple.  Therefore,  where  the  testator  has  given  an 
absolute  interest  in  real  or  personal  property  to  several  as  ten- 
ants in  common,  with  an  executory  devise  over  on  the  death  of 
all  without  issue,  no  necessity  for  cross-remainders  between 
them  exists,  as  there  would  be  no  intestacy  in  the  event  of  any 
dying  without  issue.^  But,  on  the  other  hand,  though  the  gifts 
be  absolute  in  terms,  j^et,  if  they  are  contingent  and  not  vested, 
"with  a  gift  over  on  the  death  of  all  without  issue  or  under  age, 
no  necessity  for  cross-remainders  will  exist.^ 

Thus,  where  a  man  devised  land  to  five  sons  and  to  their 
heirs  male,  and  '■'■  if  all  five  should  die  ivithout  issue^''  then  over, 
it  was  held  that  the  survivor  of  the  five  was  entitled  to  the 
whole.^  In  America  the  same  rule  is  applied  to  gifts  in  fee  to 
several  persons  as  tenants  in  common,  with  a  limitation  over  if 
they  should  die  without  issue.*  Accordingly,  where  the  gift 
was  to  A.  and  B.,  their  heirs  and  assigns,  but  if  they  should  die 
without  issue  then  over,'  or  to  A.  and  B.  with  a  remainder  to 
their  issue,  and  remainder  on  their  death  to  the  survivor,^  a 
cross-remainder  by  implication  was  created.    One  or  two  of  the 

1  Skey  V.  Barnes,  3  Mer.  334;  Brown-  Dow  v.  Doyle,  103  Mass.  489:  Hoxton 
head  v.  Hunt,  2  Jac.  &  Wal.  459;  v.  Archer,  3  Gill  &  J.  (Md.)  199; 
Baxter  v.  Lash,  14  Bear.  612.  Pierce  v.  Hakes,  23  Pa.  St.  231;  Kerr 

2  Mackell    v    Winter,   3  Ves.   236,  v.  Vernon.  66  Pa.  St.  326. 

536;  Scott  v.  Bargeman,  2  P.  Wras.  68.        ^  Lillibridge  v.  Adie,  1  Mason  C.  C. 

3  Dyer,  303b.  13   Eliz.;   Holmes  v.     224. 

Meynell,  Raym.  452.  2  Show.  136.  «Seabrook  v.  Mikell,  Cheves  (S.  C.) 

■»  Allen  V.  Trustees,  102  Mass.  262;     Eq.  80. 


§  853.]  GIFTS    OVER    ON    DEATH    WITHOL'T    ISSUE.  12S3 

earlier  cases  refuse  to  admit  the  application  of  the  rule  of  cross- 
remainders  by  implication  where  the  property  was  devised  to 
more  than  two.'  But  this  distinction  has  been  wholW  repudi- 
ated by  the  later  cases,  and  the  rule  in  both  England  and 
America  is  that  cross-remainders  will  be  implied  to  carry  out 
the  testator's  intention,  irrespective  of  the  number  of  those 
among-  whom  they  are  to  be  raised.'-  The  general  rule  is  that 
cross-remainders  are  only  to  be  implied  to  carry  out  i\ie  mani- 
fest intention  of  the  testator.  If  it  shall  appear  from  an  express 
limitation  over  that  the  testator  has  created  cross-i-emainders 
in  express  terms  on  the  happening  of  certain  particular  events, 
this  may  be  an  indication  that  he  did  not  desire  that  such  re- 
mainders should  be  employed  on  the  happening  of  other  events.' 
This  is  illustrated  in  an  early  case  where  the  testator  devised 
land  to  A.  and  B.,  and  in  the  event  of  the  death  of  A.  before 
the  age  of  sixteen,  her  share  to  B.,  and  if  B.  should  die  without 
issue,  then  to  A.  On  the  death  of  A.  after  having  attained 
the  age  of  sixteen,  the  court  held  that  there  could  be  no  implica- 
tion of  a  cross-remainder  in  such  case.*  And  this  early  case  has 
been  subsequently  followed  in  England.^  But  in  other  cases  it 
has  been  held  that,  inasmuch  as  cross-remainders  are  largely  a 
matter  of  intention,  the  circumstance  of  the  remainder  hav- 
ing been  expressly  created  between  the  parties,  on  the  hap- 
pening of  particular  events,  is  not  decisive  that  the  testator  did 
not  intend  that  similar  remainders  should  be  employed  on  the 
happening  of  different  events.*'  If  the  parties  to  whom  the  es- 
tate has  been  limited  as  tenants  in  common  take  different  inter- 
ests, that  is  if  some  are  tenants  in  fee,  others  onl}"  for  life,  the 
limitation  over  on  failure  of  issue  will  give  them  cross-remain- 
ders by  implication.'  The  same  rule  is  applied  as  to  the  crea- 
tion of  cro.ss-remainders  where  property  is  given  to  several 
persons  as  tenants  for  life,  with  a  remainder  to  their  respective 
issue,  and  a  dt.-vise  over  in  ca.se  of  the  death  of  all  of  tlu'iu  with- 

iGillxirt  V.  Witty.  Cro.  Jhc.  0">,        <  ("l;i(.-lu>',s  Caso.  Dyer,  :'>:!()/'. 
Cole  V.  Liviriijston,  1  Vent.  224.  '•  Itiibljcth  v.  Snuire,  IS)  Hcav.  TO,  77, 

2  Hall  V.  rri.'st.  «  (Jniy  (.Mass.).  IM;  4  De  (lex  &  J.  4(»(>. 
2  Wa.slib.   R    R.   p.  .'517;    Hoxton   v.        «  Atkinson  v.  Hamm,  HI  IVav.  277. 

Archer,  3  Oill  &  J.  (M.i.)  IIW;  Wall  v.  3  D.  V.  &  J.  :{:{!». 
Maj;uire,  21  I'a.  St.  24H.  '^  Van.l.TiiIaiick  v.  King,  3  Hare,  1. 

'  Clache's  Case,  Dyer,  'S-iOb. 


1284  .  LAW   OF   WILLS.  [§  853. 

out  issue.^  So,  also,  the  same  rule  is  applied  where  the  devise 
is  to  A.  and  B.  in  tail  as  tenants  in  common,  and  in  default  of 
such  issue  then  over.-  And  the  fact  that  the  devise  is  limited 
to  A.  and  B.  and  the  heirs  of  their  respective  bodies  as  tenants 
in  common,  with  a  limitation  over  in  default  of  such  issue,  does 
not  alter  the  rule,  and  there  will  be  cross-remainders  among  the 
first  class  of  takers,  with  a  limitation  of  the  whole  estate  over.' 

iln  re  Ridge's  Trusts,  L.  R  7  Cli.        3-SYatson  t.  Foxon,  2  East,  36,  40; 

665;  In  re  Clark,  11  W.  E,  STL  Comber  v.  Hill,  2  Stra.  969:  Williams 

2  Wright  V.  Holford,  Cowp.  31,  2  v.  Brown,  2  Stra.  996;  Doe  d.  Gorges 

Eden,    239;    Phipard    v.    Mansfield,  v.  Webb,  1  Taunt,  234,  238;  Green  v. 

Cowp.  797;  Atherton  v.  Pye,  4  T,  R,  Stephens,  17  Ves.  64,  75. 
710. 


CHAPTER  XLIIL 


THE  VESTING  OF  FUTURE  DEVISES  AND  LEGACIEa 


§  854  Definition,  classification  and 
characteristics  of  contin- 
gent remainders. 

855.  The  perpetuity  created  by  a 

contingent  remainder. 

856.  The  happening  of  the  contin- 

gent events. 

857.  The  character  of  remainders 

to  heirs. 

858.  Conditional    limitations    and 

remainders  which  are  de- 
pendent upon  the  remar- 
riage of  a  tenant  for  life. 

859.  Remainders  de^iendent  upon 

the  death  of  a  life  tenant 
without  surviving  issue  or 
children. 

860.  Vested  remainders  defined. 

861.  An  early  vesting  is  favored  by 

the  law. 

862.  The  judicial  leaning  in  favor 

of  vested  gifts  where  the 
testamentary  disposition  is 
residuary. 

863.  Examples    of    remainders 

wliich  have  been  held  to  be 
vested. 
864  When  remainders  to  classes 
are  vestei 

865.  Contingent     remainders     to 

classes. 

866.  Vested  interests  may  be  cre- 

ated by  directions  for  the 
future  division  of  land  or  of 


money,  or  for   the  future 
payment  of  a  legacy. 

867.  Vested  remainders  which  are 
subject  to  be  divested  by 
some  future  event. 

868.  The  effect  of  a  power  of  dis- 
posal on  a  vested  remainder. 

869.  The  vesting  of  devises  and 
legacies  at  majority. 

870.  Contingent  legacies  which 
vest  only  at  majority  in  a 
legatee. 

871.  The  effect  of  a  limitation  over 
on  death  during  minority 
in  vesting  a  legacy. 

872.  The  effect  of  the  gift  of  the 
intermediate  income  on  the 
vesting  of  a  legacy. 

873.  Tlie  vesting  of  pecuniary  leg- 
acies, and  particularly  of 
those  charged  uf>on  the 
rents  and  proceeds  of  land. 

874.  The  definition  and  classifica- 
tion of  executory  devises. 

875.  Executory  devises  are  not  af- 
fected by  the  acts  of  the 
holder  of  the  precedent  es- 
tate, 

876.  The  effect  of  the  failure  of  an 
executory  devise. 

877.  The  transfer  of  future  vested 
estates. 

878.  The  acceleration  of  future  es- 
I  tates. 


§  854.  Definition,  i-I;issification  and  rliarat'toristics  of  con- 
tiniroiit  roniaiiulers. —  The  reader  will  pardon  us  if  we  insert 
at  thi.s  ])oint  a  few  of  tlie  elenumtary  princij)les  of  law  govern- 
ing contingent  remainders.  Tliough  these  principles  are  toler- 
ably familiar  to  the  majority  of  members  of  the  profession,  a 


12SG  LAW   OF   WILLS.  [§  854. 

short  recapitulation  of  them  may  be  of  value  where  one  is  un- 
expectedly called  upon  to  give  an  opinion  of  the  character  of 
a  future  limitation,  and  the  recognized  authorities  in  this  de- 
partment of  the  law  are  not  within  reach. 

A  contingent  remainder  is  one  which  is  limited  to  vest  upon 
the  happening  of  some  event  which  is  dubious  and  uncertain, 
and  hence  may  never  happen  at  all,  or  may  only  happen  after 
the  particular  estate  is  at  an  end;  or  Avhich  is  given  to  a  non- 
existent person  or  to  a  non-existent  class  of  persons.^  "  Con- 
tingent or  executory  remainders  (whereby  no  present  interest 
passes)  are  where  the  estate  in  remainder  is  limited  to  take  ef- 
fect either  to  a  dubious  and  uncertain  person,  or  upon  a  dubious 
and  uncertain  event,  so  that  the  particular  estate  may  chance 
to  be  determined  and  the  remainder  never  take  effect."  ^  Many 
classifications  of  contingent  remainders  have  been  attempted. 
They  are  divided  by  Mr.  Elackstone  into  two  classes.  The 
first  class  of  contingent  remainders  comprises  those  which  are 
to  vest  upon  the  happening  of  some  dulnous  and  uncertain 
event.  The  second  class  includes  those  which  are  limited  to 
some  diibious  and  uncertain  person  or  persons.  In  the  first 
class  we  may  arrange  contingent  remainders  which  are  to  vest 
upon  the  prior  termination  of  the  particular  estate  by  some 
uncertain  event,  which  does  not,  of  necessity,  abridge  or  de- 
stroy it.  Under  the  second  class  of  contingent  remainders  are 
included  all  limitations  in  remainder  to  persons  who  are  un- 
born at  the  death  of  the  testator,  as,  for  example,  to  the  heirs 
of  a  person  who  is  described  as  then  alive,*  and  also  remainders 
limited  to  uncertain  persons,  as  to  the  survivors  of  several  per- 
sons named,  or  to  a  class,  or  to  the  surviving  members  of  a 
class.*  Independently  of  modern  statutory  modifications,  it  is 
the  rule  that  a  future  estate,  whether  vested  or  contingent,  if 
it  is  to  operate  as  a  common-law  remainder,  must  be  created 
by  the  same  instrument  and  at  the  same  time  as  the  particular 
estate  w^hich  is  to  support  it  and  which  precedes  it.  And  a 
contingent  remainder  must  vest,  if  at  all,  either  during  the 

1  4  Kent,  Com.,  p.  198.     For  other  Spear  v.  Fogg,  87  Me.  132,  139;  Eob- 

definitions,  see  Robinson  v.  Palmer,  inson  v.  Palmer,  96  Me.  246,  248. 
89  Me.  128,  35  Atl.  R.  1037;  Harvard        ^2  Black.  Com.,  p.  168. 
College  V.   Balch,   171  IlL  275,  280;        3  See  §§  612,  857. 


Post,  §§  864,  865. 


§  855.]  TESTING    OF    FUTURE    DEVISES    AND    LEGACIES.  128T 

continuance  of  the  particular  estate  or  at  once  at  its  termina- 
tion. This  is  the  consequence  of  the  rule  that  at  the  common, 
law  the  fee  could  not  be  in  abeyance.^ 

Ilence,  it  follows  that  if  the  particular  estate  comes  to  an. 
end,  or  if  it  is  destroyed  before  the  contingent  remainder  has 
vested,  the  remainder  is  also  destroyed.  Thus,  in  the  earlier 
common  law,  if  a  life  tenant  alienated  his  freehold  by  feoffment, 
or  a  tenant  in  tail  alienated  by  fine,  all  contingent  remainders 
coming  after  him  were  by  this  action  destroyed.  But  courts 
of  equity  have  always  favored  contingent  remainders,  particu- 
larly when  they  were  contained  in  wills;  and  no  contingent 
remainder  can  be  destroyed  by  a  transfer  of  the  particular  es- 
tate by  means  of  any  conveyance  which,  like  a  bargain  and  sale 
deed,  operates  solely  as  an  equitable  conveyance  under  the 
statute  of  uses. 

Again,  a  continorent  remainder  could  not  as  such  be  created 
by  a  common-law  conveyance,  as  by  a  feoffment,  to  take  effect, 
that  is  to  vest,  upon  the  happening  of  an  event  which  prema- 
turely brought  the  particular  estate  to  an  end.  If  a  future  es- 
tate in  land  was  by  its  terms  to  vest  upon  the  happening  of 
any  event  which  defeated,  abridged  or  destroyed  the  preced- 
ing estate,  it  would  not  be  valid  as  a  common-law  contingent 
remainder,  though  it  might  be  valid  as  a  conditional  limitation, 
or  as  an  executory  devise  when  it  was  created  by  a  Avill.- 

§  855.  The  perpetuity  created  by  a  eontini^ent  remainder. 
"When  a  contingent  remainder  is  created  by  a  common-law 
feoffment  vntJt  livery  of  seizin  to  the  Ife  tenant^  the  fee  or 
inheri.tance  is  said  to  be  in  abeyance,  because  there  is  no  one 
in  whom  it  would  vest  absolutely,  until  the  contingent  event 
happens  upon  which  the  remainder  in  fee  will  become  vested.' 
l>ut  where  a  contingent  remainder  or  an  executory  devise  is 

1 1'U)wden,  2.1.  28;  Co.  Litt.  49  a,  b;  commence  in  fiituro."    4  Kent.  Com.. 

Arclier"»  Case,  1  Ca  68;  Chudleigli's  p.  242.     And  see  also  jmst,  i  881. 

Case.  1  Co.  i:J8.     "  There  must  be  no  ^  See  ante,  §  480.  and  ;»o.s•^  Ji  874. 

interval  or  mean  time  between  the  ^4  Kent,  Com.,  p.  252;  ChiidleiKh's 

particular  estate*  and  the  remainder  Case.  1  Co.  i:J5.  The  rule  in  Shelly's 

HUpIK^rted   by  it.     If   the   particular  case   was    introduced   to    avoid  tho 

estate  terminates  before  the  remain-  great  uiconvenience  which   will  re- 

der  f!an  vest,  the  remainder  is  gone  suit   in  such  cases.     See  ante,  g  O.Vi 

forever,  for  a  freehold  interest  can-  et  se(i. 
not,  according  to  the  eoinniun  law, 


12S8  LAW  OF   WILLS.  [§  855. 

created  in  a  will  ivhich  certainly  does  not  operate  hy  feoffment 
and  by  actual  livery  of  seizin,  but  under  the  statute  of  wills, 
the  inheritance,  unless  disposed  of  by  a  residuary  devise,  de- 
scends to  the  heirs  of  the  testator,  to  remain  with  tliem  until 
the  contingency  happens;  for  in  equity  it  was  admitted,  at 
least  after  the  creation  of  uses  and  trusts,  and  the  passage  of 
the  statutes  of  uses  and  of  wills,  that  estates  of  freehold  might 
be  created  by  will  or  as  uses  to  commence  in  future}  In  the 
case  of  an  executory  devise  of  a  freehold  to  begin  in,  futuro 
without  any  particular  estate  created  to  support  it,  the  fee  de- 
scends to  and  remains  vested  in  the  heirs  of  the  testator,  sub- 
ject to  being  defeated  as  soon  as  the  executory  devise  shall 
vest.^  The  same  rule  is  applicable  to  all  conveyances  of  the 
fee  which  operate  not  by  feoffment,  but  under  the  statutes  of 
uses  or  of  wills.  And  the  great  importance  of  this  rule  in  the 
United  States  of  America  lies  in  the  fact  that  conveyances  by 
feoffment  and  with  livery  of  seizin  are  universally  abolished ; 
and  bargain  and  sale  deeds,  and  other  conveyances  which  de- 
pend for  their  validity  upon  the  statute  of  uses  or  upon  some 
similar  statute,  have  been  substituted  for  conveyances  by  feoff- 
ment and  livery.  By  the  creation  of  a  contingent  remainder 
by  means  of  a  common-law  feoffment,  the  fee  or  inheritance 
was  regarded  as  having  been  absolutely  parted  with  by  the 
feoffor;  and,  as  there  was  no  one  in  being  in  whom  it  could 
vest  absolutely,  it  was  held  of  necessity  to  be  in  abeyance.' 
The  doctrine  of  abeyance  resulted  in  the  greatest  inconven- 
ience. Logicall}'-  no  person  could,  until  the  contingent  re- 
mainder vested,  convey  with  livery  of  seizin;  for  a  contin- 
gent remainder,  viewed  from  a  common-law  standpoint,  was 
not  regarded  as  an  actual  estate  until  it  had  vested.  It  was  a 
mere  possibility  of  having  an  estate  in  the  future,  and  as  such 
it  was  not  assignable;  for  a  contingent  remainder  could  be 
conveyed  at  common  law  only  by  way  of  estoppel,  which  was 
either  by  record,  as  by  a  fine  and  common  recovery,  which  de- 
stroyed it,  or  by  deed,  as  by  a  grant.*  In  equity,  however,  all 
contingent  interests,  whether  common-law  remainders,  future 
or  contingent  uses,  or  executory  devises,  were  always  assign- 

1  Ante,  %%  111,  778.  « Co.   Lit.   352a;  Weale  v.  Lower, 

2  See  §  874  etseq.  PoUexfen,  54,  61;  4  Kent,  Com.  254. 
»Posf,  §881. 


§  856.]  TESTING    OF   FUTURE    DEVISES    AND    LEGACIES.  12S9 

able  by  conveyances  operating  under  the  statute  of  uses;  and 
also  by  wills  if  they  were  of  an  inheritable  nature,  and  the 
person  or  persons  to  take  had  been  ascertained.  But  where 
the  ultimate  remaindermen  or  executory  devisees  were  not  in- 
esse,  or  were  not  ascertainable  until  the  happening  of  the  con- 
tingency, the  future  disposition  of  property  was  a  mere  possi- 
bility not  coupled  with  an  interest,  and  it  was  not  assignable 
either  in  law  or  equity.^ 

The  rule  of  the  older  law  that  contingent  interests  cannot  be 
transferred  save  by  an  estoppel  by  deed,  or  by  a  conveyance 
operating  under  the  statute  of  uses,  is  now  generally  repealed 
by  statutes  in  very  many  of  the  states.  In  many  of  the  states 
all  estates  in  expectancy,  whether  they  are  vested  or  contingent, 
are  descendible,  devisable  and  assignable,  according  to  their 
nature  and  duration,  by  the  ordinary  deeds  of  conveyance  which 
are  required  in  the  case  of  vested  estates.  Elsewhere  contin- 
gent and  executory  interests  which  are  not  estates  mav  be  con- 
veyed  if  the  contingency  upon  which  they  are  to  vest  is  not  as 
to  the  person  in  whom  the  future  estate  shall  vest.^  But  where 
the  contingency  upon  which  the  ultimate  enjoyment  of  the  re- 
mainder depends  is  the  survival  of  the  remaindermen  until  the 
termination  of  the  particular  estate,  as  when  it  is  to  "  children 
living  at  the  death  of  A.,"  who  is  the  tenant  for  life,  the  re- 
mainder is  neither  assignable  nor  transferable,  and  a  purchaser 
on  execution  takes  no  title.' 

§  856.  The  happeiiinfl?  of  the  contingent  events.— Although 
the  law  favors  vested  estates,  both  in  real  and  personal  proj)- 
erty,  a  future  and  executory  devise,  or  a  legacy  wliicli  is  to  vest 
upon  the  happening  of  some  contingent  event,  will  not  vest 
unless  the  contingency  hapi)ens  ^;;vt'/.s'<L7y  as  described  by  the 
will.  So,  also,  two  or  more  events  ui)on  the  happening  of 
which  concuj^reiitly  an  estate  is  to  vest  must  happen  precisely 
as  indicated.*  The  contingent  events  must  coincide  in  char- 
acter and  in  the  order  of  their  occurrence  with  those  which  are 

iRoe  V,  Jon«*s.  1  H.  Black.  30;  4  345;  Dunn  v.  Sur«ent,  101  Ma.ss.  330; 

Kent.  Com.,  p.  ;J.");  a^<^a»^^^  ^S^y-'il-  Robinson  v.  Puhner,  90  Me.  240,  88 

2  Wilkinson   v.  SlK'rnian.  4."i  N.  J.  At).  K.  10:  Roseniiu  v.  Cliildress,  111 

Eq.  413.  \>i  Atl.  \L  'Z'iH;  RouMiltreo  v.  Aliu  214.  20  S.  li.  »*,. 

Routi.ltrfie.  20  S.  C.  450.  2  S.  K.  li.  474.  *S.»,.  mit>;  J5  4H0.  us  to  the  strict 

2  Putnam  v.  Story,   132  >Lih.h.  207,  performunce  of  conditions. 
211;  Nttbli  V.  Na«li,  12  Allen  (Muss.), 


1290  LAW   OF   WILLS.  [§  85C. 

requiretl  by  the  terms  of  the  testator's  language  of  limitation. 
Thus,  if  the  testator  has  provided  for  the  distribution  of  his  es- 
'tate  upon  the  happening  of  one  or  more  contingent  events  at  the 
termination  of  a  prior  existing  vested  estate,  and  none  of  the 
required  events  happens  exactly  as  provided  for,  the  court  can- 
not, by  supplying  dispositive  words  or  the  language  of  gift  or 
of  devise,  dispose  of  the  estate  upon  tiie  happening  of  another 
event,  though  that  is  nearly  similar  to  the  events  which  have 
been  mentioned.  This  rule  of  construction  is  illustrated  by  a 
future  provision  for  the  children  of  A.  then  living,  i.  e.,  at  the 
termination  of  a  vested  life  estate,  but  if  one  such  child  only 
survive,  and  there  be  no  surviving  issue  of  any  deceased  child, 
then  to  that  child,  and  there  is  a  surviving  child  and  also  the 
survivinsr  issue  of  one  or  more  deceased  children.  The  devise 
does  not  vest  in  the  children  of  A.,  for  the  condition  of  affairs 
actually  existing  is  not  the  one  provided  for  by  the  testator, 
and  as  the  future  gift  was  contingent  upon  a  state  of  affairs 
which  cannot  now  exist,  the  testator  is  pro  tanto  intestate.' 
And  this  rule  is  likewise  well  illustrated  by  an  executory  de- 
vise to  A.  in  case  B.  shall  die  under  the  age  of  twentj^-one  and 
without  issue.'^  Here  B.'s  death  must  take  place  under  twent}'- 
one,  and  the  deceased  must  also  leave  no  issue  at  his  death,  or 
the  contingent  devise  w^ill  fail. 

An  estate,  whether  in  fee  or  for  life,  which  is  vested  either 
in  interest  or  in  possession,  but  which  is  subject  to  being  di- 
vested upon  the  concurrence  of  two  or  more  contingent  events, 
Avill  not  be  divested  unless  all  the  necessary  contingent  events 
shall  happen  precisely  as  described  in  the  will.  Thus,  if  a 
vested  interest  is  to  determine  and  to  go  to  others  upon  the 
happening  of  some  event  which  of  itself  puts  an  end  to  tlie  es- 
tate, as  m  the  example  above  given,  the  vested  estate  will  not 
determine  until  the  event  shall  happen.  And,  on  the  other 
hand,  if  an  absolutely  vested  interest  is,  upon  the  happening  of 
one  or  more  events  which  are  in  their  nature  contingent,  to  be 
divested,  and  then  the  estate  is  to  go  to  other  persons  who  up 
to  tliat  time  are  uncertain  or  are  not  persons  in  being,  the 
vested  interest  will  not  be  divested,  unless  it  shall  appear  that 
the  devisees  over  who  are  to  take  are  ascertained  at  that  tiiiie. 

iShuldam  v.  Smith.  6  Dow.  22,  by        2  See  ante^  %  407. 
Lord  Eidon  and  Lord  Redesdale. 


§   S57.]  VESTING    OF    FUTURE    DEVISES    AND    LEGACIES.  1201 

This  is  so,  although  the  contingent  event  has  happened  upon 
which  the  prior  interest  was  defeasible.^  Accordingly,  under 
this  rule,  where  a  remainder  is  devised  to  A.  and  B.  b}^  name 
as  individuals,  equally  to  be  divided  between  them  at  the  death 
of  the  life  tenant,  or  to  the  survivor  ofthem^  and  Tjoth  die  during 
the  life  tenancy,  the  remainder,  being  vested,  is  not  divested. 
The  representatives  of  A.  and  B.  each  take  an  equal  share.  The 
remaindermen  take  vested  estates  at  the  death  of  the  testator, 
subject  to  be  divested  by  the  fact  that  one  only  survives,  and 
he  is  to  take  all  if  he  survive.  As  the  only  event  which  can 
possibly  defeat  the  share  of  any  remainderman  has  not  and 
cannot  happen,  the  share  of  none  is  divested.- 

§857.  The  character  of  remainders  to  heirs. —  The  con- 
struction of  future  gifts  to  the  heir  or  heirs  when  they  are  to 
take  as  purchasers  under  the  will  is  so  fully  and  exhaustively 
treated  in  another  portion  of  this  work,^  that  little  remains  to 
be  said  here.  A  remainder  to  the  heirs  of  a  life  tenant  (in  those 
states  where  the  rule  in  Shelly 's  case  is  repealed)  is  a  contin- 
gent remainder,  for  nemo  est  hceres  viventis^  and,  if  the  life  ten- 
ant shall  die  Avithout  any  heirs,  the  remainder  is  gone.^  But 
very  often  the  word  "  heirs,"  in  the  case  of  a  remainder  to  the 
heirs  of  the  life  tenant,  will  be  construed  to  mean  his  children,'* 
in  which  case  the  children  will  usually  take  a  vested  remainder 
as  a  class.^  Thus,  a  remainder  to  the  "  heirs  of  the  marriage 
of  the  testator  by  his  present  wife  and  to  heirs  of  the  former 
marriage  of  the  said  wife  "  of  the  testator  means  "  children  of 
those  nuirriages,'"  and  such  children  have  been  held  to  take 
contingent  remainders.^ 

Whether  a  remainder  devised  to  the  heirs  of  the  testator  him- 
self shall  be  vested  or  contingent  depends  alwa3's  upon  the  ex- 

lAn  illiLstration  of  the  rule  of  the  2  Bjo^vne  v.  Kenjon,  3  Maii.  .'IIO; 

text  is  foumi   in  Wood  v.  Mason.  17  Bell  v.  Slack.  1  Kee.  2liH. 

R  I.  99.  20  Ail.  R  204,  which  was  a  ^^■.^  ()Ot;-tj:]:{. 

devise  of  a  life  estate  to  A.,  but  if  A.  '•Larnioiir  v.  Rich.  71   Mil.  KWi,  IS 

died  before  the  testiitor«/(f/<-liiliiless  Atl.  R  702;  Putnam   v.  (Jleason.  99 

then  over,  and  A.  survived  the  testa-  Mass.  451;  Kiclianlsoii  v.  Wheatland, 

t^jr,   h>ut    died    leaving   no   children.  7  Met.  (Mass.)  I09. 

The  court  hold  that  the  devise  over  ''Antr,  t-J;  (SKJ,  (U7. 

did  not  vest,  as  it  was  dependent  on  '•See  also  Jj  558. 

a  flouble  contingency,  1,  i\,  that  A.  "  Ma^uire  v.  Jloore.  lOS  Mo.  2(57,  18 

should  iirede<'«»jise  the  testator  and  S.  W.  R  897. 
hIho  that  he  shoidd  di(;  cliildless. 


1292 


LAW    OF    WILLS. 


[§  857. 


act  wonling  of  the  will.  If  by  "  heirs  "  the  testator  means  those 
persons  who  are  his  heirs  at  his  death  (which  is  the  customary 
construction)/  tliose  persons  take  a  vested  estate  in  remainder. 
On  the  other  hand,  where  it  is  clear  that,  by  a  reference  to  his 
heirs,  the  testator  means  those  persons  alone  who  would  be  his 
heirs  if  he  had  died  at  the  termination  of  the  life  estate,  the  re- 
mainder to  his  heirs  would  probably  be  construed  as  contingent 
until  that  event.- 

In  conclusion  it  may  be  said  that  a  remainder  to  the  heirs  of 
a  person  other  than  the  testator,  but  who  takes  nothing  himself 
under  the  will,  is  always  contingent  until  the  death  of  that  per- 
son.' "Where  the  ancestor  is  alive  at  the  execution  of  the  will 
and  he  dies  hefore  the  testator,  those  who  are  his  heirs  and  who 
also  survive  until  the  death  of  the  testator  take  a  vested  re- 
mainder.* "Where  the  ancestor  is  alive  at  tJie  death  of  tlie  tes- 
tator, the  class  doctrine  is  applied,  and  all  who  would  be  his 
heirs  if  he  died  immediately  take  a  contingent  remainder,  as  a 
class,  subject  to  open  and  let  in  others  born  to  him  during  his 
life.  Then,  upon  his  death  before  the  life  tenant,  those  who 
are  his  heirs  take  a  vested  remainder,  the  possession  only  being 
postponed  until  the  death  of  the  life  tenant.^ 


i^nfe.  §§  610,  613. 

2  Bunting  v.  Speck,  41  Kan.  421 
Walker  v.  Dunshee,  38  Pa.  St.  439 
Donohue  v.  :\IcNichol,  61  Pa.  St.  73 
Johnson  v.  Jacob,  11  Bush  (Kv.),  646 
Rich  V.  Waters.  22  Pick.  (Mass.)  563 
Sears  v.  Russell,  8  Gray  (Mass.),  86. 

3  2  Black.  Com.,  pp.  169,  170;  Pres- 
ton V.  Brant.  96  :Mo.  552.  10  S.  W.  R. 
78;  Ryan  v.  Monoglian,  99  Tenn.  338, 
42  S.  W.  R  144;  Hall  v.  Nute,  38  N.  H. 
422. 

4  Persons  v.  Snooks,  40  Barb.  (N.  Y.) 
144;  Campbell  v.  Rawdon,  18  N.  Y. 
412;  Preston  v.  Brant,  96  Mo.  552,  10 
S.  W.  R.  78;  TiUinghast  v.  Cook,  9 
Met.  (Mass.)  143. 

5  Moore  v.  Littell,  41  N.  Y.  66.  And 
see  also  ante,  §  612,  and  the  early 
case  of  Dan  vers  v.  Earl  of  Clarendon. 
1  Vern.  35,  and  Bullock  v.  Bullock,  2 
Dev.  Eq.  (N.  C.)  316.  Before  it  can  be 
decided  whether  a  testator  has  or  has 


not  succeeded  in  creating  a  valid  con- 
tingent remainder  by  a  devise  to  a 
person  for  life  with  remainder  to  the 
heirs  or  to  tlie  heirs  of  the  body  of 
the  life  tenant,  it  is  necessary  to  as- 
certain to  what  extent,  if  at  all,  the 
court  construing  the  will  is  bound  by 
the  rule  of  law  known  as  the  rule  in 
Shelly's  case.  This  rule,  which  has 
been  fully  discussed  in  another  por- 
tion of  this  work,  is  as  follows:  If  an 
ancestor  takes  an  estate  for  life  and 
an  immediate  remamder  is  limited 
thereafter  in  the  same  instrument  to 
his  heirs,  or  to  the  heirs  of  his  body, 
the  words  "  heirs  "  or  "  heirs  of  his 
body  "  are  not  words  of  purchase.but 
words  of  limitation,  and  the  fee  vests 
at  once  in  the  ancestor.  The  words 
"  heirs  "  or  "  heirs  of  his  body"  do  not 
create  a  contingent  remainder  where 
the  rule  is  in  operation,  but  the  life 
tenant  takes  an  estate  in  fee  or  in  fee 


§  858.]  TESTIXG    OF    FUTURK    DEVISES    AND    LEGACIES.  1293 

§  858.  Conditional  limitations  and  remainders  which  are 
dependent  npon  the  reniarriuu:e  of  a  tenant  for  life. —  Else- 
'where  it  is  explained  that  a  devise  by  the  testator  to  his  widoAV 
for  her  life,  but,  if  she  should  remarry,  then  over  to  others  in 
fee,  loithoiit  any  provision  for  the  disj)ositio?i  of  the  fee  after  her 
death,  where  she  does  not  remarry,  gives  the  devisee  over  a  re- 
mainder in  the  latter  event  by  implication,  the  courts  inserting 
the  proper  words  for  such  a  limitation.^  The  point  here  to  be 
considered  is  whether  a  devise  of  the  future  estate,  on  the  mar- 
riage of  the  widow,  simjjliciter,  is  a  conditional  limitation,  valid 
only  under  the  statute  of  wills  and  contingent  solely  upon  the 
remarriage  of  the  widow,  so  that  if  she  shall  die  without  hav- 
ing remarried  it  will  be  defeated;  or  whether  it  is  a  remainder, 
vested  or  contingent,  according  to  circumstances,  which  is  to 
take  effect  in  any  case  on  her  death,  if  she  shall  die  without 
having  remarried. 

The  question  is  an  old  one  and  frequently  arises.  The  diflB- 
culty  is  caused  by  the  fact  that  an  estate  which  is  given  for 
life,  in  express  terms,  is  to  be  terminated  by  a  contingent  event; 
i.e., the  marriage  of  the  life  tenant.  Under  such  circumstances 
it  may  seem  that  the  devise  over  is  contingent  and  should  take 
effect  only  if  the  prior  life  estate  is  terminated  hy  marriage,  and 
that  it  should  be  defeated  if  it  is  not.  Thus,  where  land  was 
devised  to  the  widow  of  the  testator  ''''for  life,  hut  vpon  the  ex- 
press condition  that  if  sice  should  marry  "  again  the  land  should 
go  to  A.  in  fee,  the  estate  to  the  widow  was  held  to  be  an  es- 
tate upon  condition,  and  the  estate  to  A.  was  a  conditional  limit- 
ation, which  was  dependent  upon  the  contingency  of  remarriage 
by  the  widow,^  and  where  the  widow  did  not  remarry  tlie  de- 
vise over  did  not  take  effect.  lUit  the  majority  of  the  decisions 
have  not  thus  construed  such  a  limitation.  In  an  earl}''  case 
where  the  limitation  was  to  the  widow  expressly  for  life  "  if  she 
should  not  marry  ayain,  hut  if  she  did,  then  to  -^1.,"  the  court 
held,  on  the  widow's  death  without  having  married  again,  that 
the  devisee  over  had  a  vested  remainder  in  fee  which  was  de- 
tail, as  the  ca.se  may  i>«\  On  th(,'f)ther  the  ancestor.  For  a  discu.ssionof  the 
hand,  where  the  rule  in  Shelly'scaso  rule  in  Shellys  case,  seeuH/e,  ^§655- 
haa  heen  rei>ealeiJ,  a  remainder  to  0<»S. 
the  heirn  or  to  tlie  lieirn  of  tlio  hody        l  .\n\t\  "i,  172. 

of  the  tenant  f<*r  life  is  a  valid  con-        -Shelheld   v.  Lord  Orrery,  3  Atk, 
tiogent  remainder  until  the  death  of    2ti2. 


121)4  LAW    OF    WILLS.  [§  S58. 

pondt'iit  on  the  life  estate  in  the  Avidow.'  The  distinction 
between  tlie  two  cases  or  chisses  of  cases  is  difficult  to  appre- 
liend  so  far  as  mere  words  are  concerned.  The  solution  is  to 
seek  the  intention  from  the  whole  will.  If  it  shall  appear  that 
the  testator  meant  to  give  an  estate  for  life  upon  a  condition 
subsequent  that  the  devisee  should  not  remarry,  the  devise  over 
is  then  a  conditional  limitation  contingent  upon  that  event 
alone,  l.  <?.,  remarriage,  which  defeats  the  prior  estate,  and  if 
that  does  not  happen  the  devise  over  never  vests.-  But  where 
it  appears  to  be  the  primary  intention  of  the  testator  to  give 
the  widow  an  estate  in  limitation  for  widowhood,  wliich  may 
of  course  endure  for  the  life  of  the  widow,  the  devise  over  is  a 
vested  remainder  coming  after  the  life  estate  of  the  first  taker.'' 
So  where  land  is  devised  to  the  widow  for  life,  remainder  in 
fee  to  B.,  but  if  the  widow  shall  remarry  then  she  is  to  forfeit  a 
jportlon  of  the  land^  B.  does  not  take  a  vested  remainder  dur- 
ing the  life  of  the  widow  in  the  land  forfeited,  but  that  inter- 
est goes  to  the  heirs  at  law  of  the  testator.^  On  the  other  hand, 
if  the  will  expressly  provides  that  the  property,  which  was 
given  to  the  widow  of  the  testator  '•'•for  her  I  fe^  provided  .she 
remains  tininarried^''  shall  immediately  upon  her  marriage  go 
to  the  remainderman,  he  will  take  a  vested  estate  in  posses- 
sion in  that  event,  and,  if  it  is  a  fee,  it  will  not  be  defeated  by 
his  death  during  the  life  of  the  Avidow.-^  So,  wiiere  the  testa- 
tor has  directed  that,  on  the  remarriage  of  his  widow,  land 

iLuxford  V.  Cheeke,  3  Levinz.125;  Pick.  (Mass.)  287,  293;  Mandersou  v. 

Gordon  v.  Adolphus.  3  B.  P.  C.  Toml.  Lukens,  23  Pa.  St.  (1854),  31 ;  Biddies 

306,  where  the  words  of  tiie  will  were  Appeal,  69  Pa.  St.  190;  Farmers'  Bank 

to  the  widow  "during  her  natural  v.  Hoof,  4  Cranch,  C.  C.  423;  Browne 

life,  that  is  to  saj.  so  long  as  she  shall  v.  Hammond,  Johns.  (Eng.)  210,  213; 

continue  unmarried,  but  in  case  she  Underhill  v.  Roden,  L.  R  2  Ch.  Div. 

sliall  choose  to  marry,  then,  and  in  494.     A  limitation  after  a  direction 

tliat  case,"  to  others,  and  in  case  of  to  pay  an  unmarrietl  woman  the  in- 

lier  death  without  issue  then  over,  come  of  a  fund  for  life,  "provided  if 

It  was  held  that  this  last  bequest  she  marry."  tlien  over,  is  valid  and 

over  did  not  depend  upon  the  event  vested  and  takes  effect  on  her  death, 

of  her  marriage.  she  never  having  married.     Meeds  v. 

2  See  ante,  %  508.  Wood,  19  Beav.  215. 

3  Thrasher  v.  Ingraham,  32  Ala.  645;  *  Augustus  v.  Sea  bolt,  3  Met.  (Ky.). 
Chappell  V.Avery,  6  Conn.  (1826),  31;  156,    160.     C/.    Bennett    v.    Packer 
Aulick  V.  Wallace,  75  Ky.  531,  535;  (Conn.,  1898),  39  Atl.  R  739. 
McKensey  v.  McKensey  (Ky.,  1895),  5  Boyd  v.  Sachs,  78  Md.  491,  28  AtL 
2S  S.  W.  R.  782;  Person  v.  Dodge,  23  R.  391. 


§   S59.]  VESTIXG    OF    FUTL'RE    DEVISES    AND    LEGACIES.  1295 

which  he  had  mven  her  for  life  should  be  forfeited  and  sold, 
and  the  proceeds  divided  among  certain  persons  named,  "  or 
who  may  be  living  at  the  death  of  the  widow,"  the  court,  to 
promote  an  early  vesting,  ordered  a  sale  and  distribution  at 
once,  on  the  widow's  remarriage,  among  the  remaindermen  then 
living.^ 

§  850.  Reinaiiulers  dependent  upon  the  death  of  a  life 
tenant  without  surviving  issue  or  children. —  A  remainder 
as  such,  whether  vested  or  contingent,  cannot  properly  be  lim- 
ited after  a  fee  simple.-  Hence  a  remainder  over  on  the  death 
without  issue  of  a  person  to  whom  land  is  given  in  fee  is  void 
where  a  definite  failure  of  issue  is  meant.  And  though  an 
executorv  devise,  dependent  upon  a  failure  of  issue,  is  valid 
where  the  testator  means  a  definite  failure  of  issue,''  neither  an 
executory  devise  nor  a  remainder  after  an  indefinite  failure  of 
the  issue  of  one  who  has  the  fee  is  valid,  because  the  contin- 
gency upon  which  it  is  to  vest  is  too  remote  and  the  vesting  is 
indefinitely  susj)ended.*  A  remainder  coming  after  a  life  estate 
in  A.,  which  is  dependent  upon  the  death  of  A.  without  leav- 
ing children  at  his  death,  or  which  depends  on  a  failure  of  issue 
living  at  his  death,  is  valid.  If  the  remainderman  is  in  esse  at 
the  death  of  the  testator  the  remainder  is  vested,  though  the 
testator  has  seen  fit  to  give  the  fee  as  a  remainder  to  the  chil- 
dren or  issue  of  the  life  tenant  who  may  survive  hini.  The 
remainder  to  B.,on  failure  of  children-or  issue  of  A.,  is  subject 
to  be  devested  by  A.'s  leaving  children  surviving  him.''  Thus, 
where  the  limitation  was  by  will  to  a  son  of  the  testator  for 
his  life,  and,  upon  his  death,  remainder  to  his  issue  absolutel}', 
but  if  he  leave  no  issue  then  remainder  in  fee  to  B.,  it  was  lield 
that  B.  took  a  vested  remainder,  subject  to  being  devested  by 
the  l>irth  of  issue  to  A.  if  they  survive  the  life  tenant;  but 
that,  on  B.'s  death  in  the  son's  life,  the  rcmaindei'  dcscciKh'd 
from  ]>.  to  his  heirs,  an<l  vested  in  possession  on  the  death  of 
the  son  without  surviving  issue."     So,  also,  where  the  deviso 

1  BainbridKe  v.  Cream,  10  Beav.  25,  O'Driscoll  v.  Kog«r,  2  Des.  (S.  C.)29r); 

2j-^  871,  yT'j.  Buist  V.  Dawes.  4  StroMi.  Va\.  (S.  C.) 

^Anti;iH\\iiiiv:(\.  37.  3H;  Pimiey   v.   Kaiiclicr.  :t   Miatif. 

*AnU'.iHA-,.  (N.  Y.)   UW.     Cf.  Lee  v.    W.-lcli,  !(;;{ 

ft  I>»[»iw  V.  I>;e,  9-'   Ky.  lO.  1(5  S.  W.  Mass.  WVi,  Hit  N.  E.  R.  1 1 1,'. 

R  :JU;;   Dunn  v.  Sargent.  101  .Mass.  '>  Hills  v.  HarnanI,  IW  Ma.s.s.  07,  25 

:m,  -.i'-i^;  Iloi.kins  v.  .Jon.-s,  ',>  I'a..St.  0'.);  N.  K.  \i.  !»«. 


129G  LAW   OF   WILLS.  [§  859. 

was  to  E.  for  life,  remainder  to  her  children  in  fee,  but  if  none 
at  lier  deaths  then  remainder  to  her  brother,  and  the  brother 
died  before  E.,  it  was  held,  upon  the  death  of  E.  leaving  no 
children,  that  the  remainder  was  vested  and  that  it  might  be 
legally  claimed  by  the  heirs  of  the  brother,  but  that  it  was  not 
devisable  by  E.^  And  the  same  construction  has  been  fol- 
lowed^ where  there  was  no  express  devise  of  the  fee  hi  remainder 
to  the  children  of  the  Vfe  tenant  whom  he  should  leave  at  his 
decease.  Thus,  where  land  was  given  to  A.,  wiio  was  the  son  of 
the  testator,  "  during  his  natural  life,  and  in  case  he  should  die 
leaving  no  child  or  children,  then  to  the  surviving  children  or 
grandchildren  of  the  testator,"  the  court  held  that  the  children 
of  the  testator  living  at  his  death  and  the  children  of  the  tes- 
lator's  deceased  children  took  vested  remainders,  subject  to 
being  devested  by  the  death  of  A.  leaving  children.  In  the 
latter  event  A.'s  children  took  remainders,  though  nothing  had 
been  expressly  devised  to  them.^ 

Many  cases,  however,  may  be  found  in  which  it  has  been 
held  that  a  remainder,  which  ordinarily  would  be  considered 
vested,  will  be  rendered  contingent  by  the  fact  that  it  is  lim- 
ited to  follow  after  the  death  of  the  life  tenant  without  issue 
or  without  children  him  surviving.  Thus,  where  a  remainder 
is  devised  to  the  issue  of  the  tenant  for  life,  but  if  he  shall  die 
without  issue,  meaning  without  leaving  issue  at  his  death,  then 
remainder  to  B.  for  life,  remainder  to  the  children  of  C,  the 
remainder  to  B.  is  vested,  while  that  to  the  children  of  C.  is 
contingent  until  B.'s  death,  A.  having  died  during  B.'s  life 
without  issue.^  So  a  devise  to  A.  for  life,  remainder  to  his 
children  living  at  his  death,  if  they  attain  majority,  or  die  leav- 
ing issue  under  majority,  but  if  none  attain  majority  or  die 
leaving  issue,  then  remainder  to  the  children  of  B.,  gives  the 

1  Garrison  v.  Hill,  79  Md  5,  28  Atl.  N.  E.  R  702,  147  N.  Y.  348.     See  also, 

R.  1062.     See  also  Goodright  t.  Jones,  sustaining  the  text,  Xaylor  v.  God- 

4Maule  &  SeL  88;  Lewis  v.  Waters,  man,   109  Mo.   543,  19  S.  W.  R.  50; 

6  East,  336.  Woelpers  Estate,  126  Pa.  St.  562,  24 

2 But  on  this  point  compare  cases  W.  N.  C.  233,  17  Atl.  R  870;  Taylor 

cited  ante,  %  468.  v.  Taylor,   63  Pa.  St.  481 ;  Losey  v. 

3Kilgore  v.  Kilgore,  127  Ind.  276,  Stanley,  147  N.  Y.  560,  42  N.  E.  R  8; 

26  N.  E.  R  66.     And  see  cases  cited,  May  v.  Gest,  14  S.  &  R  (Pa.)  40;  Je- 

p.  621,  note  2.  nour  v.  Jenour,  10  Ves.  562;  Roe  d. 

4  Nathan  v.  Hendricks,  34  N.  Y.  S.  Sheers  v.  Jeffery,  7  T.  R  589. 
1016,  87  Hun,  483;   In  re  Baer,  41 


§  860.]  TESTING    OF    FCTUEE    DEVISES    AND    LEGACIES.  1297 

latter  class  a  contingent  remainder  and  not  an  executory  de- 
vise.^ A  devise  of  a  remainder  to  the  children  of  the  life  ten- 
ant, but  if  none  survive  him,  then  to  "•  the  grandchildren  of  the 
testator,  their  heirs  and  assigns  forever,"  gives  the  grandchil- 
dren of  the  testator  living  at  his  death  a  contingent  remainder 
as  a  class,  "svhich  opens  to  let  in  after-born  grandchildren,  but 
which  is  defeated  by  the  death  of  the  life  tenant  leaving  chil- 
dren.- In  conclusion  it  may  be  said  that  a  limitation  over  upon 
the  death  of  a  life  tenant  without  children,  when,  if  he  has 
any  surviving,  they  are  to  take  a  vested  remainder,  does  not 
refer  solely  to  death  in  the  life-time  of  the  testator,  as  would 
usually  be  the  case  if  the  devise  Avas  to  the  devisee  in  fee,  and 
on  his  death  without  children  then  over? 

§860.  Vested  remainder  defined. —  A  vested  remainder  is 
one,  says  Chancellor  Kent,  "  lolieii  there  is  an  immediate  right 
of  present  enjoyment,  or  a  present  fixed  right  of  future  enjoy- 
mentr  *  The  uncertainty  that  the  remainder  will  ever  vest  in 
possession  in  the  remainderman  named  will  not  render  it  con- 
tingent, if  there  be  a  person  in  being  in  whom  it  would  vest  if 
the  precedent  estate^  were  to  come  at  once  to  an  end.  If  the 
remainder  is  in.  fee,  and  it  is  vested  in  A.,  the  fact  that  he  dies 
during  the  life  of  the  tenant  of  the  life  estate  does  not  devest 
the  remainder,  but  A.'s  estate  in  the  remainder  descends  to  his 
heirs,  and  they  may  enter  into  possession  at  the  termination  of 
the  particular  estate.'^  So,  too,  a  renuiinder  to  B.  and  the  heirs 
of  his  body  is  a  vested  remainder  in  B.  in  fee  tail,  though  it 
may  happen  that  B.  dies  without  heirs  of  his  ])ody  before  the 
life  tenant.  It  is  the  present  capacity  of  the  remainder  to  take 
efifect  in  possession  which  makes  it  a  vested  remainder,  Ihit, 
on  the  other  hand,  if  it  be  uncertain  whether  the  remainder 
will  ever  vest  in  any  person  at  all,  the  remainder  is  contingent. 

1  Dernill  v.  K<ii(l,  71  Md.  ITo,  17  Atl.  silollister  v.  Hutterworth  (Conn., 

R.  1014.  1898),  40  AtL  R.  1044. 

2Ek'ckley  v.  LefTingwell,  57  Conn.  M  Com.,  p.  1*J4. 

163,  17  Atl.  R.  700;  St.  Jolin  v.  Dunn,  ^Saxton    v.  Wchl.or,  8:{  Wl.s.  017, 

34  Atl.  R   110,  66  Conn.   401.     The  0:.'(i;  Hills  v.  H.unar.l,  X's'i  Mas.s.  07; 

construction   of   deviwjM   over   upon  MtrCarty   v.    Fisli.  87   Midi.  48,  4i>  N, 

the  death  of  the   prior  taker  in  fee  W.  R.  .".IH;  Cjarkson  v.  I'ldl,  17  R.  1. 

under    age    or    witlxjut    i.ssnc,   and  040,  21  Atl.  U.  110.     See  also  g  U40. 
when  "or"  is  changed  into  '-and,'' 
i»  considj-red  at  length  in  g  300. 


1208  LAW    OF    WILLS.  [§  SCO, 

Tlie  simplest  example  of  a  vested  remainder  is  a  devise  to  A. 
for  his  life,  and  after  or  at  his  death  the  fee  is  to  go  to  B.  and 
his  heirs,  and  A.  and  B.  are  both  living  at  the  death  of  the  tes- 
tator.^ But  few  limitations  are  worded  so  simply  or  so  plainly 
as  this,  and  the  dilliculty,  in  construing  the  language  of  the 
will,  of  ascertaining  whether  the  testator  intends  to  give  a 
vested  or  a  contingent  interest,  is  very  great.  The  line  of  de- 
marcation between  vested  and  contingent  future  estates  is  very 
fine  and  discernible  often  only  with  great  difficulty.  When- 
ever it  is  possible  the  future  interest  will  be  construed  as  vested, 
and  hence  alienable  and  devisable  by  the  remainderman.^  It  is 
not  so  much  the  certainty  or  the  uncertainty  of  the  enjoyment 
of  the  fee  in  remainder  after  the  life  estate  ends  as  the  uncer- 
tainty of  the  person  who  has  a  present  right  to  enjoy  the  future 
estate  if  the  particular  estate  came  to  an  end  now,  which 
determines  the  character  of  the  remainder.  A  remainder  is 
vested  if  the  remainderman,  being  alive^will  take  at  once  if  the 
life  tenant  were  to  die.  The  fact  that  his  enjoyment  is  post- 
poned, and,  on  a  certain  event,  as  on  his  death,  may  never  take 
place  at  all,  does  not  make  the  remainder  contingent.  But 
where  there  is  no  person  now  in  being  upon  whom  the  enjoy- 
ment and  possession  of  the  remainder  would  devolve  as  a  re- 
mainderman, if  the  particular  estate  were  to  terminate,  the 
remainder  is  contingent.     Where  a  vested  remainder  is  devised 

1  As  in  Perrine  v.  Newell,  49  N.  J.  man  is  in  esse  and  ascertained ;  pro- 
Eq.  57.  vided  nothing  but  his  death  before 

2  "  A  vested  remainder  is  one  lim-  the  determination  of  the  particular 
ited  to  a  certain  person  or  a  certain  estate  will  prevent  such  remainder 
event,  so  as  to  possess  a  present  ca-  from  vesting  in  possession.  Yet,  if 
pacity  to  take  effect  in  possession  the  estate  is  limited  over  to  anotiier 
should  the  possession  become  va-  in  the  event  of  the  death  of  the  re- 
cant." Crews'  Adm'r  v.  Hatcher,  91  mainderman  before  the  determina- 
Va.  378,  21  S.  E.  R.  811.  A  good  ex-  tion  of  the  particular  estate,  his 
ample  of  this  would  be  a  remainder  vested  estate  will  be  subject  to  be 
to  A.  upon  the  death  of  B.  without  devested  by  that  event;  and  the  in- 
issue  living  at  his  death.  So,  it  is  terest  of  the  substituted  remainder- 
said,  "  where  a  remainder  is  limited  man,  which  was  before  either  an 
to  take  effect  in  possession,  if  ever,  executory  devise  or  a  contingent  re- 
immediately  on  the  deterinination  mainder,  will,  if  lie  is  in  esse  and  as- 
of  the  particular  estate,  which  estate  certained,  be  immediately  converted 
is  to  determine  by  an  event  that  into  a  vested  remainder."  By  the 
must  happen  unavoidably  by  the  ef-  court,  in  Blanchard  v.  Blanchard,  1 
flux  of  time,  the  remainder  vests  in  Allen  (Mass.),  227. 

interest  as  soon  as  the  remainder- 


§  S61.]  VESTING   OF    FUTUKE    DEVISES    AND    LEGACIES.  1299 

to  A.,  with  a  disposition  of  the  fee  to  C.  upon  the  death  of  the 
remainderman  without  issue,  it  will  be  presumed,  in  the  ab- 
sence of  a  contrary  intention  clearly  shown,  that  the  death 
of  A.  without  issue  during  the  life  of  the  particular  tenant  is 
meant,  and,  upon  A.  surviving  the  life  tenant,  he  will  take  ab- 
solutely.^ 

§  861.  An  early  vesting  is  favored  hy  the  law. —  Under  the 
rule  elsewhere  explained,-  by  which  a  modern  will  speaks  as 
of  the  date  of  the  death  of  the  testator,  every  gift  to  a  person 
who  is  alive  at  that  date  vests  at  once,  in  the  absence  of  an 
expression  of  an  intention  that  the  vesting  shall  be  postponed. 
It  will  be  presumed,  when  the  testator  does  not  expressly  or 
by  implication  indicate  that  the  vesting  of  the  title  to  his 
bonnty  is  to  be  postponed,  that  he  means  it  to  vest  at  once 
upon  his  death.  Ilis  silence  upon  this  point  will  raise  a  con- 
clusive presumption  that  the  interest  in  the  gift  is  to  vest  as 
soon  as  the  instrument  by  which  it  is  given  shall  take  effect, 
which,  under  the  general  rule,  is  at  his  death.  And  if  the  per- 
son who  is  to  take  is  not  alive  at  his  death,  the  title  will  vest 
as  soon  as  he  comes  into  being,  for  the  law  in  every  case  favors 
an  early  vesting.  No  future  or  executory  limitation  will  he  re- 
garded as  contingent  which  may,  consistently  loith  the  i7itention 
of  the  testator  gathered  from,  the  whole  will,  he  deemed  vested. 
The  presence  of  the  language  of  contingency,  as  in  the  phrase 
"  if  they  be  living,"  or  to  those  who  "  may  then  be  living,"  or 
in  similar  language,  is  to  be  considered,  though  such  phrases 
are  by  no  means  conclusive,  as  they  may  refer  to  the  entering 
into  the  possession  as  well  as  to  the  vesting  of  the  title.  If  the 
terms  of  the  will  are  equivocal  or  ambiguous  on  this  point, 
they  ouglit  to  be  construed  to  favor  the  vesting  of  the  title  at 

^  See  anto,  g  .340,  p.  40."),  for  Cc-isos  tliose  were  liviiifjat  the  iloatli  of  B. 

citf;<J  ujKin  tliis  jK)iiit.     "  If  it  is  clear  Here  are  two  certain  determinate 

tJiat  certain  jiersons  n<jw  living  have  persons  to  take  jKjssession.     In  this 

a  riglit  to  t<'ike  jKissession  at  tlie  de-  e.xaniph«,  botli  tlie  contingency  upon 

tennination  of  the  life  estate,  or  at  whidi  tlio  possession  depended,  and 

any  time  wlien  it  becomes  vacant,  the   persons  who  had  the  cajmcity 

the  remainder  is  v(?sted.     As,  if^V.I>y  to  make  the  will  elTectual  by  their 

will  flevised  his  real   property  to  H.,  ri^lit  of  [Kissession,  were  fixed,  deli- 

his  wife,  ff)r  and  durin;^  her  life,  and  nite  and  certain."    .Simpson,   J.,    ia 

at  lu-r  death  to  liis  lethal  hr-irs;  and  at  KuntiriK  v.  SiHiuk,  41  Kan.  424,  4111, 
the  deiith  of  A.  he  hail  two  sons,  ati<l         -'.^  IL 


1300 


LAW    OF    ^^•ILLS. 


[§  861. 


as  earlv  a  date  as  possible.  AYhere  the  time  -when  tlie  interest 
shall  vest  is  in  doubt  because  the  testator  has  used  words  which 
may  mean  either  of  two  dates,  the  earlier  date  is  to  be  selected.' 
This  rule,  that  the  executory  estate  shall  be  construed  to  be 
vested  rather  than  contingent,  whenever  the  former  construc- 
tion is  possible,  is  the  result  of  that  other  very  old  rule  of  the 
common  law^,  that  the  fee  shall  never  be  in  abeyance  if  it  can 
possibly  be  avoided.  Future  estates,  if  contingent,  are  not  as- 
signable at  the  common  law,  though  the  person  to  take  is  in 
being.-  A  vested  remainder  in  fee  is  always  assignable,  though 
the  possession  is  postponed  until  after  the  death  of  the  life  ten- 
ant. Now  that  future  contingent  interests  are  also  assignable 
in  equity  and  devisable  under  the  statute  of  wills,  at  least 
whore  the  person  who  may  ultimately  take  the  fee  in  posses- 
sion is  in  being,  the  old  principle  of  avoiding  an  abeyance  is 
not  so  applicable.  But  the  rule  which  favors  a  vesting  seems 
to  be  invoked  by  the  modern  cases  with  all  its  ancient  force.' 


'Savage  v.  Burnham,  17  Ala.  119; 
Walkerly's  Estate.  108  Cal.  627,  41 
Pac.  R.  772;  Peters  v.  Spillman,  18 
111.  370:  People  v.  Jennings,  44  111. 
488:  Valentine  v.  Ruste.  93  111.  585; 
Nicoll  V.  Scott,  99  111.  529:  Lambert 
V.  Harvey.  100  III.  338;  Davidson  v. 
Koehler,  76  Ind.  398,  409;  Harris  v. 
Carpenter,  109  Ind.  540, 544;  Davidson 
v.  Bates,  111  Ind.  391,  398;  Amos  v. 
Amos,  117  Ind.  37,  38;  Bruce  v.  Bis- 
sell.  119  Ind.  524,  529;  Heilman  v. 
Heilman,  129  Ind.  59,  63;  Wills  v. 
Wills.  85  Ky.  486,  3  S.  W.  R.  900; 
Pliillips  V.  Johnson.  14  B.  Mon.  (Ky.) 
172:  Deering  v.  Adams,  37  Me.  264, 
273;  Brown  v.  Lawrence,  3  Cusli. 
(Mass.)  390,  397;  Gardiner  v.  Guild, 
106  Mass.  25,  28;  Miles  v.  Boyden,  3 
Pick.  (Mass.)  213;  Pike  v.  Stephenson, 
99  :Mass.  188;  Eldridge  v.  Eldridge.  9 
Gush.  (Mass.)  516,  518;  Peck  v.  Carl- 
ton, 154  Mass.  230,  233:  Blancliard  v. 
Blanchard,  1  Allen  (Mass.),  223,  225, 
226;  Marsh  v.  Hoyt,  161  Mass.  459, 
461;  Nash  v.  Cutler,  16  Pick.  (Mass.) 
491;  Minot  v.  Harris,  132  Mass.  528, 
539;  Rivenett  v.  Bourquin,  .53  Mich. 


10;  McCarty  v.  Fish,  87  Mich.  48; 
Hall  V.  Wiggin  (N.  H.,  1896),  29  Atl. 
R.  671 ;  Campbell  v.  Rawdon,  18  N.  Y. 
412;  Livingston  v.  Greene,  52  N.  Y. 
118;  Titus  V.  Weeks,  37  Barb.  (N.  Y.) 
126;  Moore  v.  Lyons,  25  Wend.  (N.  Y.) 
119;  Chafee  v.  Maker,  17  R.  L  739,  24 
Atl.  R.  773;  Smith's  Appeal,  23  Pa. 
St.  9;  Passmore's  Appeal,  23  Pa.  St. 
381;  Young  v.  Stoner.  37  Pa.  St.  165; 
McClure"s  Appeal,  72  Pa.  St.  414:  Mc- 
Cairs  Appeal,  86  Pa.  St.  284;  Hub- 
bert's  Estate,  6  Pa.  Dis.  R.  96;  Baker 
V.  McLeod,  79  Wis.  534,  541;  Scott  v. 
West,  63  Wis.  529.  552,  562,  564,  565: 
Croxall  V.  Shererd,  5  Wall.  (U.  S.) 
287,  288;  Pond  v.  Allen,  15  R.  L  171, 
2  Atl.  R  302. 

2  4nfe,  §855. 

3  "There  is  a  prevalent  disposition 
by  all  the  courts,  upon  the  ground  of 
general  policy,  to  favor  vested,  rather 
than  contingent,  remainders;  and 
consequently,  where  there  arises 
from  the  terms  of  the  convej'ance 
a  grave  doubt  as  to  whether  the  re- 
mainder vested  at  the  death  of  the 
devisor,  or  should  remain  expectant 


§§  862,  863.]      TESTING    OF    FrXURE    DEVISES  AND  LEGACIES.       loOl 


§  86'2.  The  judicial  leaning  in  favor  of  vested  gifts  where 
the  testamentary  disposition  is  residuary. —  The  presumption 
which  arises  from  the  fact  of  the  execution  of  a  will,  that  the 
testator  in  making  it  did  not  mean  to  die  intestate  as  to  any 
portion  of  his  property,  strengthens  the  presumption  in  favor  of 
the  vesting  of  gifts  when  the  gift  is  a  disposition  of  a  residue. 
Language  which  ordinarily  would  be  construed  as  creating  con- 
tingent gifts,  if  employed  in  relation  to  specific  legacies  or  de- 
vises, or  particular  gifts  not  included  in  a  general  or  residuary 
clause,  will  in  the  case  of  a  residuary  clause  be  construed  as 
creating  vested  interests.^ 

§  863.  Examples  of  remainders  which  have  heen  held  to 
be  vested. —  A  devise  to  A.  for  life,  remainder  to  his  oldest  son ;  - 
a  devise  in  remainder  to  the  son  of  a  life  tenant  "  provided  he 
shall  care  for  his  father  so  long  as  he  lives; "  *  or  of  a  remainder 
to  A.  upon  condition  of  his  making  a  payment  during  his  pos- 

ancl  contingent  until  the  happening  48  N.  E.  R.  582. 168  III.  273,  282;  Hay- 
ward  V.  Loper,  147  111.  41;  Whitcomb 
V.  Rodman,  I.IG  111.  IIG,  121;  Hawkins 
V.  Bohling  (111.).  48  N.  E.  R.  94,  95; 
Taubenhan  v.  Dunz,  17  N.  E.  R.  456, 
124  111.  524;  Kinney  v.  Keplinger,  173 
III.  449,  458,  50  N.  E.  R.  131 ;  Leiter  v. 
Sheppard,  85  111.  242;  Mills  v.  Frank- 
lin, 128  Ind.  444,  448;  Borgner  v. 
Brown,  133  Ind.  391,  396;  Cote  v. 
Cronor,  30  Ind.  292;  Korf  v.  Gerichs, 
145  Ind.  134,  137;  Groves  v.  Gulph, 
132  Ind,  186,  188;  Benkert  v.  Jacob}-, 
36  Iowa,  273, 276;  Davis  v.TauI.  (i  Dana 
(Ky.),  51,  52;  Mann  v.  Hyile,  71  Mich. 
278;  Toms  v.  Williams,  41  Mich.  532; 
Wales  V.  Templeton.  83  Mich.  177,  47 
N.  W.  R  328;  Coffin  v.  Petei-son,  71 
Me.  596;  Bills  v.  Putnam,  64  N.  H. 
554;  Irwin  v.  Zane,  15  W.  Va.  646; 
Sa.xton  V.  Wul>ber,  83  Wi.s.  617.  625; 
111  re  Ehle,  73  Wis.  445,  451;  (^lien«'y 
V.  I'luiiil).  79  Wis.  602,  60(!;  in  M.itt.T 
of  I'icrcc,  56  Wis.  560,  565. 

-Giiniiiu-r  v.  Guild,  106  .Mass.  25. 
The  sdii  wlio  was  oldest  at  tlie  death 
of  till'  testator  was  meant. 

•'(Wngrieh  v.  (Jingrich.  1  H!  Ind.  227, 
45  N.  E.  H.  101. 


of  a  future  event,  the  doubt  is  always 
resolved  in  favor  of  a  vested  i-emain- 
der.  Many  well-considered  cases  as- 
sert a  still  stronger  rule  in  favor  of 
vested  remainders,  by  holding  that 
all  estates  in  remainder  are  to  be 
treated  as  vested,  except  in  a  devise 
in  which  a  condition  precedent  to 
the  vesting  is  so  clearly  expressed 
that  the  court  cannot  treat  it  as 
vested  without  doing  so  in  [ilain  con- 
tradiction to  the  language  of  the 
will.  Another  rule,  so  often  ex- 
pressed that  we  find  it  everywhere 
in  the  books,  but  probably  included 
in  those  already  stated,  is  that  no  re- 
mainder will  be  construed  contin- 
gent which  may,  consistently  with 
the  words  used  or  the  intention  ex- 
pres.sed,  be  deemed  vested."  Bunt- 
ing V.  Sfieek,  41  Kan.  424,  4:'.'^. 

•  Tlie  authorities  which  sustain  the 
jtresumption  against  intestacy  are 
without  number.  A  few  only  of  tlie 
nu)st  recent  are  here  cited,  though 
these,  it  may  be  noted,  are  more  a|>- 
plioiblu  to  the  general  rule  than  to 
the  queHtion  of  vesting.  Higgins  v, 
Dwen,  100  III.  551,  556;  King  v.  King, 


1303  LAW  OF  -WILLS.  [§  864. 

session  of  the  estate;'  a  devise  "absolute  to  B.  on  the  death  of 
A.,  but  if  B.  shall  die  in  the  life  of  A.  then  to  B.'s  heirs;"'-' 
a  devise  of  a  house  "to  be  given  to  A."  one  year  after  the 
death  of  B.,'  or  to  B.  if  living  at  the  death  of  the  life  tenant, 
but  if  not  then  to  another,^  or  a  direction  that  the  land  is  "  to 
revert  to  my  three  children  "  after  the  death  of  my  widow,^ 
creates  a  future  gift  which  vests  at  the  death  of  the  testator. 
A  vested  remainder  may  also  be  created  by  terms  which  shall 
make  it  defeasible  upon  a  condition  subsequent.  Thus,  as  is 
shown  elsewhere,®  a  remainder  in  fee  to  A.,  but  if  he  shall  die 
■without  issue  under  twent3'"-one,  is  vested,  but  may  be  defeated 
upon  his  death  during  minority  and  Avithout  issue.^ 

§  864.  When  remainders  to  classes  are  vested. —  Because 
of  the  principle  that  the  law  favors  an  early  vesting,  it  is  a  gen- 
eral rule,  unless  a  contrary  intention  is  clearly  expressed,  that 
where  the  testator  has  given  a  remainder  to  a  class,  which  may 
increase  or  decrease  in  numbers  during  the  particular  estate, 
the  remainder  will  vest  in  those  members  of  the  class  loho  are 
alive  at  the  death  of  the  testator,  subject  to  o}ien  and  let  in  all 
after-born  members  of  the  class.^  The  members  of  the  class 
who  are  alive  at  the  death  of  the  testator  take  vested  remain- 
deis,  though  the  share  of  each  may  be  diminished  b}^  the  subse- 
quent birth  of  new  members  into  the  class  during  the  duration 
of  the  particular  estate.^ 

As  the  various  members  of  the  class  are  born  during  the  ex- 
istence of  the  life  tenancy,  each  takes  at  once  a  vested  remainder, 
though  his  enjoyment  and  possession  are  postponed.  AYhere 
the  remainder  is  a  vested  remainder  in  fee  to  the  class,  the  death 

1  Duncan  V.  Prentice,  4  Met.  (Kj'.)  Kent  says:  "Where  a  remainder  is 

216.  limited  to  the  use  of  several  persons 

2Tindall  v.  Miller,  143  IlL  337,  41  who  do  not  all  become  capable  at 

N.  E.  R.  535.  the  same  time,  as  a  devise  to  A.  for 

'Pond  V.  Allen,  15  R.  I.  171,  2  Atl.  life,  remainder  to  his  children,  the 

R.  302.  children  living  at  the  death  of  the 

*  Hoover  v.  Hoover,  116  Ind.  498,  19  testator  take  vested  remainders,  sub- 

N.  E.  R  468.  ject  to   be   disturbed   by  after-born 

s  Shipp  V.  Gibbs,  88  Ga.  184, 14  S.  E.  children.   The  remainder  vests  in  the 

R.  196.  persons  first  becoming  capable,  and 

6  Post,  §  867.  the  estate  opens  and  becomes   de- 

^  Hinrichsen  v.  Hinrichsen,  172  111.  vested  in  quantity  by  the  birth  of 

462,  50  N.  E.  R.  135.  subsequent  children,  who  are  let  in  to 

8  See  cases  cited  §§  551-558.  take  vested  portions  of  the  estate." 

9  In  4  Comm.,  p.  197,  Chancellor  See  also  anfe,  p.  723,  note  1  et  seq. 


§  864:.]  TESTING    OF    FUTURE    DEVISES    AND    LEGACIES. 


1303 


of  one  of  the  remaindermen  before  the  death  of  the  life  tenant 
will  not  devest  his  share.  And  the  deceased  remainderman's 
interest  will  descend  to  his  heirs  if  he  has  not  disposed  of  the 
fee  by  his  will.  The  share  of  each  member  of  the  class,  being 
Tested,  is  also  assignable  and  devisable  during  the  existence  of 
the  particular  estate,  subject  to  diminution  as  to  the  amount 
or  quantity  which  the  remainderman  or  his  heirs  will  ulti- 
mately receive  by  reason  of  the  class  being  subject  to  open 
and  let  in  after-born  members.^ 


1  Rosenau  v.  Childress,  111  Ala.  214, 
20  S.  R.  95;  Bull  v.  Bull,  8  Conn.  49; 
Johnson  v.  Webber,  33  Atl.  R.  506,  65 
Conn.  501;  Belfield  v.  Booth.  63  Conn. 
299,  27  Atl.  R.  585;  Nelson  v.  Pom- 
eroy,  29  AtL  R  534,  64  Conn.  257; 
Crawley  v.  Blackman,  81  Ga,  775,  8 
S.  E.  R.  533;  De  Vaughn  v.  JI'Leroy, 
10  S.  K  R.  211,  82  Ga.  687;  Kelly  v. 
Gonce,  49  111.  App.  82;  Kilgore  v. 
Kilgore,  127  Ind.  276,  26  N.  E.  R.  56; 
Heilman  v.  Heilman,  28  N.  E.  R. 
SIO,  129  Ind.  59;  Moores  v.  Hare 
(Ind.,  1897),  43  N.  E.  R.  870;  Fleming 
V.  Ray,  86  Ga.  533,  12  S.  E.  R.  944; 
Burnside  v.  Wall,  9  B.  Mon.  (48  Ky.) 
321;  W^inter's  Estate,  114  Cat  186; 
Arnold  v.  Arnold,  11  B.  Mon.  (Ky.) 
-93:  Downes  v.  Long,  79  Md.  382,  29 
Atl.  R  827;  Young  v.  Robinson,  11 
Ciill  &  J.  CKy.)  328;  Waters  v.  W^aters, 
24  Md.  430.  446;  Dulaney  v.  Middle- 
ton,  72  Md.  67,  19  Atl.  R.  146;  Taylor 
V.  Mosher,  28  Ud.  443,  455;  Straus  v. 
Rost,  67  Md.  465,  10  Atl.  R  74;  De- 
vecmon  v.  Shaw,  16  Atl.  R.  645,  70 
Md.  219;  Winslow  v.  Goodwin,  7  Met. 
(Ma-ss.)  381;  Lombard  v.  Willis,  147 
lyiass.  13,  16  N.  E.  R  737;  Parker  v. 
Converse,  5  Gray  (71  Mass.),  336; 
Shattuck  V.  Stednian,  2  Pick.  (Mass.) 
468;  Weston  v.  Foster,  7  M(;t.  (Mass.) 
297,  299;  Vallard  v.  Vallard,  18  Pick. 
(Mass.)  41 ;  Dingley  v.  Dingley,  5  Mass. 
537.  See  also  other  Massachusetts 
cases  cited  in  note  1,  page  732;  also 
Adams  v.  W<Kjlman,  50  N.  J.  Ecj.  510, 
20  Atl.  R  451;  Budd  v.  Haines,  52  N. 
J.  Eq.  488,  29  Atl.  R  170;  Van  (Jie- 


son  V.  Howard,  7  K  J.  Eq.  462;  Ward 
V.  Tompkins,  30  N.  J.  Eq.  3,  4;  Parker 
V.  Hover,  42  N.  J.  Eq.  559,  9  Atl.  R 
217;  Cook  v.  lUIcDowell,  53  N.  J.  Eq. 
351 ;  Thomae  v.  Thomae  (N.  J.,  1889), 
18  Atl.  R  355;  Hana  v.  Osborn,  4 
Paige  (N.  Y.),  336,  342;  Van  Vechten 
V.  Pearson,  5  Paige  (N.  Y.),  512;  Tan- 
ner V.  Livingstone,  12  Wend.  (N.  Y.) 
83;  Ramsay  v.  De  Remer,  65  Hun 
(N.  Y.),  212,  20  N.  Y.  S.  143;  Teed  v. 
Morton.  60  N.  Y.  500:  Stevenson  v.  Les- 
ley. 70  N.  Y.  512,  517:  Bowditch  v.  Ay- 
rault,  33  N.  E.  R  1067,  138  N.  Y.  222; 
aji^e,  pages  732  and  733,  notes  ;Goggins 
V.  Flythe,  113  N.  C.  102, 18 S.  E.  R  96; 
Meares  v.  jMeares,  4  Ired.  L.  (46  N.  C, 
1844^  192,  196:  Robinson  v.  McDiar- 
mid,  87  N.  C.  455;  Minnig  v.  Batdorf,  5 
Pa.  St.  503:  Ross  v.  Drake,  37  Pa.  St. 
373:  Thoman's  Estate,  29  Atl.  R84, 161 
Pa.  St.  444:  Snyder's  Estate,  180  Pa. 
St.  70;  In  re  Fetrow,  58  Pa.  St.  424; 
Rudebaugh  v.  Rudebaugh.  72  Pa.  St. 
271;  Hinkson  v.  Less,  181  Pa.  St.  225, 
232,  37  Atl.  R.  338;  McGregor  v.  Too- 
mer,  2  Strobh.  (S.  C.)  L.  51 ;  Crossby 
V.  Smith,  3  Rich.  Eq.  (S.  C)  244;  Bal- 
lard V.  Connors,  10  Rich.  Eq.  (S.  C.)  3S9, 
392;  Schoppert  v.  Giilam.  6  Rich.  Kij. 
(S.  C.)  83;  Alexander  v.  Walsh,  3  1  hsul 
(40  Tenn.).  493;  Owens  v.  Dunn.  M5 
Tenn.  131:  Harris  v.  Aldorsoii.  4  Sliced 
(Tenn.),  251 ;  Fricrson  v.  Van  Bcurcii,  7 
Yerg.  (Tenn.)  006;  Franklin  v.  Frank- 
lin, 91  Tenn.  119;  Cooper  v.  licphurn, 
15  (iratt.  (Va.)558;  Chapman  v.  Cha|)- 
man.  90  Vu.  409, 18  S.  K.  R  913;  How- 
Ictt  v.  Rowlett,  5  Leigh  (Va.,  1834), 


1304 


LAW    OF   WILLS. 


[§  865. 


§  865.  Contingent  remainders  to  classes. —  The  rule  of  con- 
struction just  stated  in  application  to  remainders  to  classes 
may  yield  before  a  clear  indication  of  a  contrary  intention  in 
tlie  will,  from  which  it  is  manifest  that  the  testator  intends  to 
postpone  the  vesting  of  the  class  gift  until  the  death  of  the 
life  tenant.    If  from  the  language  of  the  will  it  is  clear  that  the 


20,  28;  Martin  v.  Kirby,  11  Gratt. 
(Va.)  67,  71;  Stone  v.  Nicholson,  27 
Gratt.  (Va.)  16,  18;  Scott  v.  West,  63 
Wis.  529,  564:  Clarke's  Estate,  3  De 
Gex,  J.  &  S.  Ill;  Stewart  v.  Sheffield, 
13  East,  526;  Fauldings  Trusts,  26 
Beav.  263;  Comber  bach  v.  Perryn,  32 
T.  R.  484;  Shortbridge  v.  Creber.  5 
Barn.  &  Cress.  866,  8  Dow.  &  Ry. 
718;  In  re  Hiscoe,  48  L.  T.  (N.  S.)  510; 
Turner  v.  Hudson,  10  Beav.  222,  224; 
Viner  v.  Francis,  2  Bro.  C.  C.  658; 
Lunt  V.  Lunt,  108  111.  307;  Grimmer 
V.  Freidrich,  164  111.  245,  45  N.  E. 
R.  498;  Harris  v.  Carpenter,  109  Ind. 
540,  544;  Hoover  v.  Hoover,  116  Ind. 
498,  500;  Losey  v.  Stanley,  147  K  Y. 
560,  42  N.  E.  R.  8;  Gilpin  v.  Williams, 
25  Ohio  St.  283;  Yeaton  v.  Roberts, 
28  N.  H.  459;  Butterfield  v.  Haskins, 
33  Me.  392,  393;  cases  cited  under 
§g  349,  546  and  558,  ante.  The  rule  of 
the  text  is  not  only  applicable  to  a 
remainder  to  the  children  of  the  life 
tenant  as  a  class,  but  also  where,  after 
the  life  estate,  the  remainder  is  to 
go  to  another  class  in  no  way  con- 
nected with  him.  Thus,  where  the 
remainder  is  to  the  children  of  B. 
after  a  life  estate  In  A.,  all  B.'s  chil- 
dren who  are  alive  at  the  death  of  tiie 
testator,  and  all  who  are  born  during 
the  life  of  A.,  take  vested  remainders 
as  soon  as  born.  "  Where  a  gift  is  to  a 
class  of  individuals  in  general  terms, 
as  to  the  children  of  A.,  and  no  period 
is  fixed  for  the  distribution  of  the 
legacy,  the  time  for  distribution  will 
be  the  death  of  the  testator;  and 
hence  only  children  born  or  begotten 
prior  to  and  in  esse  at  that  time  will 
be  entitled  to  share  in  the  distribu- 


tion. But  where  the  distribution  is, 
by  the  terms  of  the  will,  to  be  made 
at  some  time  subsequent  to  the  death 
of  tiie  testator,  tiie  gift  will  embrace 
not  only  all  ciiildren  living  at  the 
death  of  tlie  testator,  but  also  all 
those  who  shall  subsequently  come 
into  existence  before  the  period  of 
distribution;  and,  if  the  bequest  is 
a  present  betjuest,  the  beneficiaries 
who  are  in  esse  at  the  death  of  the 
testator  will  take  vested  interests  in 
the  fund,  but  subject  to  open  and 
let  in  after-born  children  who  shall 
come  into  being  and  belong  to  the 
class  at  the  time  appointed  for  the 
distribution.  Wiiere  the  period  of 
distribution  is  postponed  until  the 
attainment  of  a  given  age  bj'  the 
children,  the  gift  will  apply  only  to 
those  who  are  living  at  the  death  of 
the  testator  and  who  shall  have  come 
into  existence  before  the  first  child 
attains  the  age  named,  being  the 
period  when  the  fund  is  first  distribu- 
table in  respect  to  any  one  object 
or  member  of  the  class.  Where  the 
members  of  a  class  take  vested  inter- 
ests in  a  legacy  distributable  at  a 
period  subsequent  to  the  death  of  the 
testator;  but  subject  to  open  and  let 
in  after-born  children,  they  take  their 
vested  shares  subject  to  tiie  distribu- 
tion of  tiiose  shares  as  the  number  of 
the  members  of  the  class  is  increased 
by  future  births;  and  on  the  death 
of  any  of  the  children  previous  to  the 
period  of  distribution,  their  shares 
will  go  to  their  respective  represent- 
atives." By  Paige.  J.,  in  Tucker  v. 
Bishop,  16  N.  Y.  402,  404. 


§  865.]  VESTING    OF    FUTURE    DEVISES    AND    LEGACIES.  1305- 

testator  meant  that  only  those  persons  loiio  may  compose  the 
class  at  the  death  of  the  tenant  for  life  shall  take  anything  in  pos- 
session or  enjoyment,  the  remainder  to  the  class  is  contingent. 
All  members  of  the  class  who  are  alive  at  the  death  of  the  tes- 
tator, and  all  who  are  born  dm^ing  the  life  estate,  take  con- 
tingent remainders;  and  wlien  the  contingency  is  that  only 
those  members  of  the  class  shall  enjoy  the  remainder  in  posses- 
sion who  are  alive  at  the  death  of  the  life  tenant,  the  remainder, 
not  being  descendible,  is  neither  assignable  nor  devisable  dur- 
ing the  existence  of  the  particular  estate. 

Words  of  survivorship  are  not,  as  is  elseAvhere  explained,* 
always  conclusive  upon  the  point  whether  a  remainder  is  vested 
or  contingent.  Though  the  courts,  as  a  general  rule,  will  ia. 
most  cases  refer  the  language  of  survivorship  to  as  early  a  date 
as  possible  consistent  with  the  expressed  intention  in  the  will^ 
such  terms  as  "to  the  children  tlien  surviving^''  to  children  '-'-tlieii 
Uoing^''  or  to  A.,  B.  and  C.  and  the  "survivor  of  them,"  -  may 
prevent  the  vesting  of  a  remainder  or  other  future  devise  at 
the  testator's  death,  and  show  that  it  is  meant  to  be  contingent 
until  the  death  of  the  life  tenant.  Accordingly  where  the  tes- 
tator, after  he  has  devised  a  life  estate  to  A.,  upon  A.'s  death 
devises  the  remainder  in  fee  to  A.'s  children  "  then  living  or 
then  su/'vivi/uj,''^  ^  or  after  a  life  estate  gives  a  remainder  to  "  my 
own  children  then  livitig,^''*  or  "to  my  children  or  the  sur- 
vivor of  them  at  the  death  of  ^1.,"  ^  or  to  my  surviving  brothers 
and  sisters,^  or  to  my  surviving  nephews,'  i\\c  conclusion  is  almost 
irresistible  that  the  devise  of  the  future  interest  does  not  vest 
at  the  testator's  death,  but  is  contingent  upon  the  devisees  liv- 
ing to  acquire  the  actual  possession.**  The  members  of  the  class 

>  Ante,  %%  349-3J3.  « In  re  Winters,  114  C'al.  1S(l,  i.j  Patv 

■^Antc,  ):■  :i->l.  R.  1()0:{. 

^M<(Jr:i\v    V.    Davenport,   0   Port.  "Denny  v.  Kettell,  1:35  Mass.  138, 

(Ahu)  310;  Putnam  v.  Story,  132  Mass.  13!». 

207,    211;    Nash   v.    Nasli,    12   Allen  •*  See  the  followinj;  eases  in  sui»i)ort 

(Ma.ss.),  34.');  Dunn  v.  Sar^eant,   101  of  tlie  text:    Ilethea  v.  liethea  ( Ala., 

Mass.  330;  Kobinson  v.  Palmer  (Me.,  IH'JT),  22  S.  R.  520;  William  v.  Cald- 

18»6).  3W  Atl.  R   10;  Mc(;illis  v.  Mc-  well  (Iowa.  1H07),  71  N.  W.  R.  214; 

(Jillis.  4!»  N.  v..  R.   14.'>.   154  N.  Y.  532.  Moores  v.  Hare  (Imi..  IHUO).  43  N.  E.  R. 

<  Ho|.kins  V.  Kea/.er.  HO  Me.  347.  30  870;    Hempstead    v.  Dirkson,  20  111. 

Atl.  R.  015;  Rounrltree  V.  lioundtree,  103.    105;  Spear  v.  Kokk-  ^1  Me.  132, 

20  S.  C.  450,  2  S.  K.  R.  474.  130:   Mercantile  Trust  Co.  v.  Mrowii, 

■•SiM-;ir  V.  FogK.  >^7  Me.  132,  32  Atl.  71    M<l.  100.  17  Atl.  R.  037;  Thomson 

\L  701.  V.  LiidiiiKton,  101  .Mass.  103;  l!uv\  iaml 


1306 


LAW    OF   WILLS. 


[§  8G5. 


who  are  alive  at  the  death  of  the  testator  take  contingent  re- 
mainders, which  vest  in  possession  only  in  case  they  survive  the 
life  tenant.  In  other  words,  only  those  persons  who  are  alive 
at  the  death  of  the  life  tenant  form  the  class  which  is  ulti- 
mately to  possess  and  enjoy  the  property  to  the  exclusion  of 
the  heirs  of  those  members  of  the  class  who  have  died  durin"; 
the  interval  between  the  death  of  the  testator  and  the  death 
of  the  life  tenant.^  Where  two  or  more  estates  for  life  follow 
one  another  in  succession,  as  to  A.  for  his  life,  then  to  B.  for 
life,  and  to  C.  for  his  life,  with  a  remainder  to  children  or  to 
any  other  class  '■Hlien''''  living  or  tJien  surviving,  the  adverb  of 
time  refers  to  the  death  of  the  last  named  life  tenant  whenever 
his  death  may  occur.     In  the  above  limitation  it  would  not  mat- 


V.  Rowland,  11  Gray  (77  Mass.),  469; 
Coveny  v.  McLaughlin,  148  Mass.  576, 
20  N.  E.  R.  165;  Hills  v.  Barnard,  153 
Mass.  67,25  N.  E.  R.  56;  Emerson  v. 
Cutler,  14  Pick.  (Mass.)  108;  Olney  v. 
Hull,  28  Pick.  (38  Mass.)  311,  314; 
Nash  V.  Nash,  12  Allen  (Mass.),  345; 
Hurl  hurt  v.  Emerson,  16  Mass.  241; 
Eberts  v.  Eberts,  42  Mich.  (1879),  404; 
Union  Association  v.  Montgomery, 
70  Mich.  587,  595;  Van  Tilburgh  v. 
Hollinshead,  14  N.  J.  Eq.  (1861),  32,  35; 
Slack  V.  Bird,  20  N.  J.  Eq.  238;  Will- 
iams V.  Chamberlain,  10  N.  J.  Eq.  373; 
Jones'  Will,  46  N.  J.  Eq.  554,  45  N.  J. 
Eq.  426;  Paget  v.  Melcher,  156  N.  Y. 
399;  In  re  Allen,  151  N.  Y.  243,  45  N. 
E.  R.  554;  Campbell  v.  Stokes,  36  N. 
E.  R.  811, 142  N.  Y.  23;  Burrill  v.  Shiel, 
2  Barb.  (N.  Y.)  457:  Moore  v.  Lyon.  25 
W^end.  (N.  Y.)  119;  Mullarkey  v.  Sul- 
livan. 136  N.  Y.  227;  Newell  v.  Nich- 
ols, 75  N.  Y.  78;  Gibson  v.  Walker,  20 
N.  Y.  476 ;  Mowatt  v.  Carow,  7  Paige 
(N.  Y.),  328,  339;  Smith  v.  Black,  29 
Ohio  St.  488,  498;  Haskins  v.  Tate,  25 
Pa.  St.  249;  Durant  v.  Nash,  30  S.  G 
184.  9  S.  E.  R.  474;  Kansas  C.  L.  Co. 
V.  Hill,  3  Pickle  (Tenn.),  589;  Schop- 
I.ert  V.  Gillam,  6  Rich.  Eq.  (S.  C.)  83; 
Dwight  V,  Eastman,  62  Vt.  398,  20 
Atl.  R  398.  And  consult  also  on  the 
same  point  the  authorities  cited  on 
page  470  et  seq.,  and  page  730,  note  2. 


1 A  remainder  to  A.,  B.  and  C,  "as 
many  of  them  as  are  alive  at  the 
death  of  D.,  and  if  any  die  leaving 
issue,  such  issue  to  take  the  parent's 
share,"  is  a  contingent  remainder 
with  a  double  aspect.  It  vests  only 
at  the  death  of  D.  in  the  remainder- 
man and  the  issue  of  those  deceased. 
Whitesides  v.  Cooper,  20  S.  E.  R.  295, 
115  N.  C.  570.  The  contingency  upon 
which  a  remainder  to  the  children  of 
a  life  tenant  "lii-ing  at  his  death'' 
depends  is  that  the  children  shall 
survive  their  father.  As  soon  as  a 
child  is  born  he  becomes  one  of  a 
class  which  is  to  take  the  property  in 
possession  at  the  end  of  his  fatlier's 
estate.  His  share  may  be  increased 
or  diminished  during  his  father's  life 
by  the  birth  or  death  of  others  into 
the  class;  but  it  can  never  be  com- 
pletely destroyed  except  by  his  own 
death  before  that  of  his  fatlier,  the 
tenant  for  life.  See  also  ante,  p.  723, 
note  1.  Though  land  be  devised  to 
the  testator's  children  hy  name,  a  di- 
rection to  divide  it,  after  the  death 
of  a  prior  life  tenant,  among  the  chil- 
dren then  living,  will  render  tlie  re- 
mainder contingent.  The  issue  of  a 
child  who  dies  during  the  life  ten- 
ancy takes  nothing.  Wilhelm  v.  Cald- 
well (Iowa,  1897),  71  N.  W.  R  214. 


^  866.]  VESTING    OF    rUTUKE    DEVISES    AND    LEGACIES.  1307 

ter,  so  far  as  the  vesting  of  tlie  remainder  in  the  class  is  con- 
cerned, whether  C.  survives  the  prior  tenants  for  life  or  not. 
Those  pereons  who  form  the  class  at  Ms  deatli  take  a  vested 
remainder,  though  that  may  take  place  during  the  prior  life  es- 
tates so  that  C.  may  never  survive  to  become  possessed  of  his 
life  estate.  And  where  C.  dies  in  the  life-time  of  the  testator, 
those  who  form  the  class  at  the  death  of  the  testator  take  vested 
remainders.^ 

But,  on  the  other  hand,  in  many  cases  a  remainder  to  the 
surviving  memhers  of  a  class  vests  at  once  on  the  death  of  the 
testator  in.  those  who  then  compose  the  class,  and  in  such  case 
the  class  does  not  open  to  let  in  after-born  members.  This  con- 
struction is  particularly  applicable  to  a  devise  of  a  remainder 
to  the  ^^ surviving  children''''  of  the  testator.^  All  members  of 
the  class  surviving  the  testator  take  a  vested  remainder,  which, 
upon  the  death  of  any  member  befoj^e  the  life  tenant,  descends 
to  his  heirs.  This  is  the  case  where,  for  example,  a  remainder 
is  given  after  the  death  of  A.  to  the  '■'•  svrviv'ing  hrothers  and 
sisters  "  of  the  testator,^  or  when  a  fund  was  to  be  divided 
"among  the  children  of  the  testator  theji  living."*  So  also 
where  a  remainder  was  devised  to  six  children  l>y  7iame,  with  a 
proviso  that  the  share  of  any  child  dying  without  issue  should 
go  to  his  or  her  su?'viving  brothers  and  sisters,  the  children  of 
one  who  dies  after  the  testator,  leaving  issue,  were  let  in.^ 

§  866.  Vested  interests  may  be  created  by  directions  for 
the  futnre  division  of  land  or  of  money,  or  for  the  future 
payment  of  a  legacy. —  A  direction  to  divide  land,  or  the  pro- 

1  Olney  v.  Bates,  3  Drew.  319.  391;  Lombard  v.  Willis,  U7  IMass.  137, 

■-'  Grimmer  v.  Friedrich,  4.5  N.  E.  R.  16  N.  E.  R.  737. 

498, 164  111.  245;  Union  Assn  v.  Mont-  =»  Stone  v.  Lewis,  84  Va.  474,  5  S.  E. 

goinery,  70  Mich.  5>s7,  59.5;  Porter  v.  R.  282. 

Porter,  50  Mich.  456;  Smith  v.  Black,  *  Wainwriglit  v.  Sawyer,  150  Mass. 

29   Ohio  St.   488,  498;    Anderson   v.  118,  22  N.  E.  R  885. 

Smoot,  SiM'or's  Eq.  (S.  C.  1844).  312;  Molines  v.  Beers.  57  Conn.  295,  18 

Ballard  v.  Connors,  10  Rich.  Eq.  (S.  C,  Atl.  H.  100.     A  jjrovision  that.  "  \\\>on 

1859),  389,  392;  Swinton  v.  Le^jare.  2  the  deatli  of  a  lil'o  tenant  witliout 

3IcCord  Eq.  (S.  C,  1822),  440;  Ream.s  is.sue,  the  remainder  should  go  to  a 

V.  Spann,  26  S.  C.  .561,  2  S.  E.  R.  412;  son  of  the  testator,  and  if  ne  simuld 

Cress^jn's  Apix^al,  76  Pa.  St.  19;  Sat-  <lie  then  ti)  his  heirs,"  gave  tiio  lieirs 

terfiehl  v.  Mayes,  11  HutM[iii.  (Tenn.)  of  tlie  son  a  remainder  contingent  on 

58,60;  Wornoek  v.  Smith,  11  II>im|tli.  tlie  death  of  tlie  son  during  the  life 

(Tenn.)  478;  Jouea  v.  Knai»pen,63  Vt.  of  the  life  tenant.     ( "hace  v.  (iregg, 

88  Tex.  552,  32  S.  \V.  IL  520. 


1308  LAW    OF    WILLS.  [§  806. 

ceeds  of  land,  at  some  future  date,  as  at  or  after  the  death 
of  one  who  has  a  life  estate  in  the  income,  among  individuals, 
and,  a  fortiori,  among  a  class,  may,  even  in  case  there  is  no 
actual  and  cxj^ress  devise  of  the  land  to  the  individuals  or  to 
the  class,  create  a  vested  remainder.  A  similar  direction  to 
pay  money,  without  express  words  of  bequest,  may  create  a 
vested  legacy.  These  and  like  directions  will  create  vested  in- 
terests where  their  meaning  is  not  controlled  by  the  context. 
The  direction  to  divide,  to  distribute  or  to  pay  implies  an  act- 
ual division,  distribution  or  payment,  and  not  one  that  is  con- 
structive, and  hence  it  will  be  presumed  to  refer  to  the  actual 
enjoyment  or  to  the  possession  of  the  land  or  money  which  is  to 
be  divided  or  pr.id.  This  is  usually  the  presumption  whore 
there  is  notJiing  more  than  a  direction  to  jpay  or  to  divide  or  dis- 
tribute, and  it  would  most  assuredly  be  the  true  construction 
where  there  is  an  absolute  devise  of  land  in  the  form  of  a  re- 
mainder, with  a  direction  for  a  division  or  partition  to  take 
place  at  or  after  the  termination  of  the  particular  estate.^ 

Thus,  where  there  was  no  absolute  and  express  gift  of  the 
land,  but  the  trustees  of  the  will  were  directed  to  sell  it  and 
to  divide  the  proceeds  among  the  heirs  of  the  testator  after 

^Williams  v.  Williams,  73  Cal.  99,  17  R.  I.  727,  24  Atl.  R.  742.  Those 
14Pac.R.  394;  Thrasher  V.  Ingraham,  cases  in  which  there  is  a  gift  of  a 
32  Ala.  G45;  Arnold  v.  Arnold,  11  B.  legacy  with  a  superadded  direction 
Mon.  (Ky.)81;  Field  v.  Hallowell,  12  to  pay  at  some  future  time,  or  on 
B.  Mon.  (Ky.)  .517:  Willett  v.  Rutter,  the  hajipening  of  a  future  event,  or 
84Ky.  317;  Weitekind  V.  Hallenberg,  a  devise  of  a  remainder  in  land  to 
88  Ky.  114,  10  S.  W.  R.  3G8;  Blanch-  individuals  or  to  a  class  with  a  simi- 
ard  V.  Blanchard,  1  Allen  (Mass.),  lar  added  direction  to  divide  in  tlie 
223;  Hogan  v.  Hogan,  102  Mich.  641,  future,  are  to  be  distinguislied  from 
61  N.  W.  R,  73;  McClure's  Appeal,  those  cases  where  there  is  only  &  di- 
73  Pa.  St.  414;  Hedger's  Estate,  1  rection  to  pay  a  legacy,  or  to  divide 
Con.  Sur.  (N.  Y.)  524;  Hurlbutt's  Es-  land  at  a  future  time  or  on  a  future 
tate,  145  N.  Y.  535,  40  N.  E.  R.  226;  event,  and  nothing  viore  than  that. 
Goebel  v.  Wolf,  21  N.  E.  R.  388,  113  The  former  are  more  likely  to  be 
N.  Y.  405;  Sayles  v.  Best,  140  N.  Y.  construed  as  vested  gifts,  other 
368,  36  N.  E.  R.  636;  Bridgewater  v.  things  being  equal,  than  the  latter. 
Gordon,  2  Sneed  (Tenn.),  5;  Hays  v.  But,  as  is  abundantly  illustrated  and 
Collier,  2  Sneed  (Tenn.),  585;  Owen  proved  by  the  cases  cited,  there  is  no 
V.  Dunn,  85  Tenn.  131,  2  S.  W.  R.  29;  conclusive  presumption  tliat  a  mere 
Foley  V.  Harrison,  84  Va.  847,  6  S.  E.  direction  to  pay  or  to  divide  land  or 
R  144;  Mc Arthur  V.  Scott,  113  U.  S.  money  in  the  future  always  creates 
580;  Heilman  v.  Heilman,  28  N.  E.  a  contingent  and  not  a  vested  inter- 
It  310, 129  Ind.  59;  Spencer  v.  Greene,  est. 


§  SOG.]  TESTING    OF    FUTURE    DEVISES    AND    LEGACIES. 


1309 


the  death  of  A.,  who  had  a  life  estate  in  it,^  or  where  land,  de- 
vised to  the  widow  of  the  testator  for  her  life,  was  directed  to 
be  divided  among-  the  children  of  the  testator  when  she  should 
remarry  or  should  die,-  or  Avhere  trustees  were,  on  the  death  of 
a  life  tenant,  to  convey  the  property,*  or  even  Avhere  land  was 
to  be  divided  *'  among  the  children  whom  the  life  tenant  may 
thereafter  have,'^  the  remainder  is  vested  and  not  contingent." 

A  legacy  will  tlie  more  readily  be  construed  as  vested  in 
every  case  where  there  is  no  other  gift  than  a  direction  to  pay 
or  to  distribute  money,  if  it  is  apparent  that  the  payment  or 
the  distribution  was  postponed,  not  in  order  that  the  legatee 
should  ])ersonally  perforin  some  act  or  acquire  some  personal 
qualification  as  a  condition  precedent  to  payment,  but  where 
the  postponement  is  clearly  intended  for  the  benefit  of  some 
one  who  takes  a  prior  interest,  or,  in  the  language  of  the  cases, 
where  the  postponement  of  payment  is  "/br  the  convenience  of 
the  estate?'*  An  illustration  of  this  is  found  where  a  fund  is 
bequeathed  to  pay  A.  the  income  for  life,  and  on  liis  decease 
to  divide  or  to  distribute  among  individuals  or  a  class.'' 

But  a  mere  direction  to  divide,  loithout  other  tvords  of  r/ift, 
does  not  always,  alone  and  without  words  of  present  gift,  create 


1  Sayles  v.  Bent.  140  N.  Y.  368,  35 
N.  E.  K.  636;  Thomman's  Estate,  161 
Pa.  St.  444,  29  Atl.  R.  84. 

^  Gest  V,  Flock,  1  Gr.  Ch.  (N.  J.  E(i.) 
108. 

3  Weston  V.  Weston,  125  Mass.  268. 

*  A  direction  that  land  of  tlie  tes- 
tator sliall  be  sold  as  "soon  after  the 
death  of  the  testator  as  it  can  be 
done,"  the  proceeds  to  be  invested 
for  the  benefit  of  the  wife  of  the  tes- 
tator duriyf^  her  life,  "and  after  her 
deeeaw  to  be  equally  divided  antontj 
the  children"  of  tins  testator,  ^ives 
tiie  children  a  vested  inti^rest  in  the 
money.  In  re  Ilurlbutt's  Estatt*.  145 
N.  Y.  535.  40  N.  K.  R.  226;  2!)  N.  Y. 
fjupp.  403.  aMirined.  Simi  also  tiide, 
^"fi  702-704.  as  to  the  vcstiiiK  <>f  lands 
directed  to  Imj  sold   for  distribution. 

•"^ChcrlHjnnier  v.  (i(Hjdwin,  7i*  .Md. 
55.  28  Atl.  K.  H!)4. 

"A   devise  of  tlic   inromc   to   the 


parent  for  life,  "  and  at  his  decease 
a  devise  of  the  principal  to  his  chil- 
dren to  be  equally  divided  between 
them,"  gives  the  children  who  were 
living  at  the  death  of  tlie  testator  a 
vested  remainder.  Lombard  v.  Willis, 
147  Mass.  IS,  16  N.  E.  R.  737.  A  de- 
vise of  a  remainder  to  children  "  to 
take  effect  at  Hie  decease  of  the  life 
tenaid,"  is  a  vested  remainder,  and  is 
not  dependent  ujMm  the  survival  of 
the  children  until  the  death  of  thn 
life  tenant.  Marsh  v.  Hoyt,  161 
Mass.  459.  37  N.  E.  R.  454. 

'Tlie  following  English  cases  may 
becit<'<l:  Halifa.x  v.  Wilson,  16  Ves. 
171:  Cliair.-rs  v.  Abcll.  3  Jur.  578; 
W.itson  V.  Watson,  11  Sim.  73;  J'ack- 
hain  V.  Gregory,  4  Hare,  3'.I(S;  In  n> 
Wilson.  14  .liir.  263;  Marshall  v.  Ment- 
ley,  1  .hir.  (N.  S.)  7H(i.  The  American 
cases  are  cittjd  mipni,  p.   13()S,  n.  1. 


1310  LAW    OF    WILLS.  [§  866. 

a  vested  remainder.  AVhere  the  direction  to  divide  amonir  a 
class  indicates  no  intention  to  postpone  the  vesting,  the  usual 
rules  apply,  and  the  class  will  consist  of  those  who  are  alive 
at  the  death  of  the  testntov,  plus  those  who  are  subsequently 
born.  But  where  the  direction  is  in  express  terms,  with  words 
of  gift,  to  divide  among  a  class  as  it  is  composed  at  the  death  of 
the  life  tenant^  as,  for  example,  to  divide  into  as  many  parts 
as  there  may  be  children  or  heirs  "  then  living,"  or  surviving;  - 
or  where  lands  are  by  the  testator  directed  to  be  sold  at  the 
death  of  the  life  tenant  and  the  proceeds  are  then  to  be  divided 
among  the  siirviving  hrothers  and  sisters  of  the  testator;'^  or 
where  a  fund  is  to  be  equally  divided  among  the  children  of 
the  life  tenant,  but  if  none  at  her  decease^  then  to  others;''  or 
where  money  is  to  be  divided  among  children  and  the  heirs 
of  those  deceased;  ^  or  where  the  direction  is  merely  to  divide 
among  a  class  of  unborn  persons  generally,^  the  remainder  is 
contingent.  And  where  the  direction  is  to  divide  amonii-  a 
class,  the  children  of  deceased  members  of  the  class  to  take 
their  parents'  shares  absolutely,  and  the  shares  of  the  members 
dying  without  issue  at  their  death  are  to  go  over,  the  remainder 
is  contingent  as  to  the  shares  of  the  substitutional  class,  but 
vested,  though  defeasible  at  least  as  to  the  shares  of  the  mem- 
bers of  the  original  class.^ 

A  direction  to  divide  among  individuals  named,  with  nothing 
more,  at  or  after  the  termination  of  a  prior  estate,  will  be  more 
readily  presumed  to  give  the  persons  named  a  vested  remain- 
der than  a  similar  direction  to  divide  among  a  class.  Devisees 
who  are  named  will  be  conclusively  presumed  to  take  vested 
estates  if  in  esse  at  the  death  of  the  testator,  unless  the  vesting 
is  very  clearly  postponed.  The  devisees  named  are  fixed  in 
number,  while  classes  are  fluctuating  as  to  their  membership, 
and  may,  consistently  with  the  language  of  the  will,  be  ascer- 
tainable as  well  at  one  time  as  at  another.^    But  a  devise  to 

1  As  to  words  of  survivorship,  see  ^  Rosenau  v.  Childress,  111  Ala.  214, 
ante,  %%  349-351.  20  S.  R.  95. 

2  Hopkins  v.  Keazer,  89  Me.  347;  5  Hunt  v.  Hall,  37  Me.  363;  Wilson 
Robinson  v.  Palmer,  96  Me.  246,  248;  v.  Bryan,  90  Ky.  482,  14  S.  W.  R.  533. 
AVomrath  v.  McCormick,  51  Pa.  St.  « Hale  v.  Hobson,  167  Mass.  397,  45 
504;  McGraw  v.  Davenport,  6  Port,  N.  E.  R.  913. 

(Ala.)  319.  -'  Ante,  §  353. 

»In  re  Winters'  Estate,  114  Cal.        8  See  anfe,  g§  551,  558. 
186,  45  Pac.  R  1043. 


§  867.]  VESTING    OF   FUTURE   DEVISES   AND    LEGACIES.  1311 

individuals  by  their  names,  to  be  divided  at  the  death  of  a  life 
tenant,  share  and  share  alike,  among  those  of  the  original 
devisees  "  then  living,''^  is  contingent  on  the  survivorship  of  the 
devisees,  and  the  descendants  of  one  who  dies  during  the  life 
tenancy  take  nothing.^ 

§  867.  Tested  remainders  which  are  subject  to  being  de- 
vested by  some  future  event. —  A  remainder  may  be  created 
which  is  vested  and  which  is  alienable  by  the  remainderman, 
but  which  is  also  liable  to  be  devested  by  the  happening  of  an 
uncertain  event  before  he  shall  take  possession.  Take  as  an 
example  of  this  a  remainder  to  the  children  of  the  life  tenant 
as  a  class,  with  a  provision  or  a  direction  that  the  children,  or 
the  issue  of  any  member  of  the  original  class,  shall  take  their 
parent's  share  in  case  the  parent  shall  not  survive  the  life  estate. 
This  gives  the  children  alive  at  the  beginning  of  the  life  estate 
a  vested  remainder  as  a  class,  subject  to  let  in  all  children  whc> 
are  born  during  the  life  tenancy,  though  the  share  of  each 
mera,ber  of  the  class  is  defeasible  as  to  him  individually  by  his 
death  during  the  life  tenancy.  This  remainder,  being  vested,  is> 
alienable,  subject  to  being  defeated  by  the  substitution  of  the 
members  of  the  secondary  class.     The  remainder  in  fee  to  the 

1  Wilhelm  v.  Caldwell  (Iowa,  1897),  his  personal  representatives,  or,  if  it 
71  N.  W.  R  214  "The  distinction  has  been  previously  assigned  by  him, 
between  a  bequest  of  money  at  a  to  his  assignee.  A  contingent,  upon 
particular  time  specified,  and  a  simi-  the  happening  of  the  same  event,  is 
lar  bequest  payable  or  to  be  paid  at  wholly  extinguished  and  sinks  into 
the  same  time,  is  somewhat  refined,  the  residuum  for  the  benefit  of  tlie 
and,  it  is  probable,  seldom  exists  in  residuary  legatees  or  next  of  kin, 
the  mind  of  a  testator;  but  it  is  es-  and  a  previous  assignment  is  neces- 
tablished  by  so  long  a  series  of  decis-  sarily  defeated,  since  every  such  as- 
ions  that  it  must  now  be  regarded  signment,  if  otherwise  valid,  is  sub- 
as  a  constituent  ])art  of  the  law,  ject  to  the  sjime  contingency  as  the 
which  it  is  our  province  and  duty  to  gift  itself.  There  is,  liowever,  an  ex- 
administer.  In  tlie  second  case  the  ception  from  the  general  rule  that  a 
gift  is  reserved  and  only  its  payment  gift  to  a  particular  jwrson  is  contin- 
I)ost(>oned.  In  the  first  tlio  gift  it-  gent  during  liis  life.  If  iluring  Iiis 
self  is  [KjstjKjned.  In  the  language  life  a  benelit  is  given  to  liim  or  to 
of  the  Ixxjks,  the  time  is  annexed  in  any  otlier  person  in  the  cajutal  sum 
the  Becond  case  to  the  payiiuut,  in  beciueathed,  tlie  legacy  is  construed 
the  first  to  the  Huhxtnurc  of  the  gift,  as  a  vested  remainder,  and  is  not  de- 
The  first  is  a  contingent,  the  .s«>cond  feateil  by  the  antecedent  death  of 
is  a  vested,  lega<;y.  A  vested  legacy,  the  legat»'«>."  I?y  Duer,  J.,  in  An- 
where  the  legatee  dies  beffjro  the  drews  v.  Amer.  Uible  Soc.,  4  Sandf. 
time  fixed  for  its  payment,  i>a.sse8  to  (N.  \.)  I'tQ. 


1312  LAW    OF    WILLS.  [§  SG7. 

issue  or  children  of  the  members  of  the  original  class  is  a  con- 
tingent remainder,^  whose  vesting  depends  upon  the  death  of 
the  parent  before  final  distribution.  As  soon  as  the  parent  dies 
leaving  children,  his  share  in  the  remainder  vests  in  them  at 
once,  and  it  is  not  then  defeasible  by  the  death  of  the  substi- 
tuted remaindermen,  unless  expressly  so  directed  in  the  will. 
Thus,  where  the  testator  devised  a  remainder  to  his  son,  and,  in 
case  of  his  son's  decease  before  he  came  into  possession,  then 
to  his  son's  children  if  any  survived  him,  but  if  none  survived 
the  son,  then  to  a  charity,  and  the  son  died  during  the  life  es- 
tate, leaving  a  child  who  also  died  during  the  life  estate,  the 
court  held  that,  as  the  remainder  vested  in  the  grandchild  of 
the  testator  at  once  upon  the  death  of  his  father,^  it  was  not 
defeated  by  the  grandchild's  death  before  the  life  tenant.^  On 
the  other  hand,  it  has  been  held  that  a  devise  to  A.  for  life,  re- 
mainder "  to  the  seven  sons  of  the  testator  nominatini,  or  to  such 
of  thetn  as  may  he  living  at  the  death  of  the  life  tenant,  .  .  . 
and  if  any  one  of  my  sons  be  deceased  leaving  lawful  issue  then 
to  that  issue,"  is  a  remainder  with  a  double  aspect.  The  re- 
mainder to  each  son  is  contingent,  being  absolutely  defeated 
by  his  death  without  issue,  but  upon  his  death  leaving  issue  a 
substituted  remainder  will  be  created  in  the  issue.*     And  as  the 

iSee  ante,  %%  353,  354,  on  substitu-  v.  Greenfield,  7  Paige,  544;  Mander- 

tional  gifts.  son  v.  Lukens,  23  Pa.  St.  31;  Pass- 

2  See  ante,  %  355,  citing  cases.  more's  Appeal,  23  Pa.  St.  381:  Siddons 

3  Van  Gieson  v.  White,  53  N.  J.  Eq.  v.  Cockrell,  131  111.  653,  23  N.  E.  R. 
1,  30  Atl.  R.  331;  Cox  v.  Handy,  78  586.  Contra,  Chew  v.  Keller,  13  S.  W. 
Md.  108,  27  Atl.  R.  227,  501.  See  also  R.  395,  100  Mo.  362.  Where  a  re- 
Mercantile  Bank  v.  Ballard's  As-  mainder  is  devised  to  a  class  with  a 
signee,  83  Ky.  481 ;  Dodd  v.  Winship,  substituted  remainder  to  the  issue  or 
144  Mass.  461,  11  N.  E.  R.  588;  Corey  children  of  those  who  die  before  dis- 
V.  Springer,  138  Ind.  506,  37  N.  E.  R.  tribution,  and  no  expi-ess  provision  is 
332;  Lenz  v.  Prescott,  144  Mass.  505,  made  disposing  of  the  share  of  one 
11  N.  E.  R.  923;  Robinson  v.  Palmer,  who  dies  without  issue  or  children, 
96Me.  246.248,  38  Atl.  R.  103;  Dunlap  it  was  held  that  the  share  of  one 
V.  Fant,  74  Miss.  197,  20  S.  W.  R.  874;  who  died  without  leaving  children 
Johnson  v.  Delome  Land  P.  Co.,  26  was  not  devested.  Cox  v.  Handy,  78 
S.  R.  360  (Miss.,  1899);  Tiencken  v.  Md.  108,  27  Atl.  R.  227,  501. 
Tiencken,  131  N.  Y.  391;  Smith  v.  nVhitesides  v.  Cooper,  115  N.  C. 
Secor,  157  N.  Y.  402,  52  N.  E.  R.  179;  570.  20  S.  E.  R.  295.  See  also  Crane 
Mullarkey  v.  Sullivan,  63  Hun,  156,  v.  BoUes,  45  N.  J.  Eq.  373,  24  Atl.  R. 
17  N.  Y.  S.  715;  Lepps  v.  Lee,  92  Ky.  237.  A  devise  to  A.  for  life,  remainder 
146,  17  S.  W.  R.  146;  Braunsdorf  v.  to  his  three  children,  or  to  such  as 
Braunsdorf,  23  N.  Y.  S.  722;  Nodine  should  be  alive  at  his  death,  being 


§  SOS.]  TESTING    OF    FUTURE    DEVISES    AND    LEGACIES.  1313 

lemaiacler  in  the  members  of  the  primary  class  is  not  vested 
absolutely  as  of  the  testator's  death,  but  is  vested  subject  to 
being  devested,  it  cannot  be  subjected  to  any  incumbrance 
which  the  remainderman  may  attempt  to  place  upon  it  as 
against  his  children  or  his  issue.^ 

Where  the  testator  has  not  used  v^^ords  of  survivorship  indi- 
cating that  none  of  the  original  class  shall  take  unless  he  shall 
survive  the  termination  of  the  life  estate,  but  has  simply  lim- 
ited the  fee  over  to  the  issue  of  a  member  of  the  class  leaving 
issue,  v^nthout  providing  for  the  death  of  a  member  of  the  orig- 
inal class  ivithout  chilch'en  or  issue,  the  remainder,  having  vested 
at  the  death  of  the  testator,  is  not  devested  by  the  death  of  a 
remainderman  vrithout  issue,  unless  it  is  expressly  given  to 
others  in  that  event.- 

§  868.  The  eifect  of  a  power  of  disposal  on  a  vested  re- 
mainder.—  A  remainder  cannot  be  limited  after  an  estate  in 
fee  simple.  It  matters  not  how  the  estate  in  fee  is  created, 
whether  by  a  limitation  to  one  and  his  heirs,  or  by  a  lim- 
itation in  indeterminate  language  coupled  with  an  absolute 
power  of  disposal;^  and  a  future  limitation  coming  after  such 
an  interest  can  only  be  valid,  if  at  all,  as  an  executory  devise. 
But  a  vested  remainder,  following  after  a  life  estate  created 
in  express  language,  is  not  rendered  contingent  by  the  fact 
that  the  life  tenant  has  a  power  of  sale  by  which  he  may  con- 
vey the  fee  for  his  support,  or  for  reinvestment,  or  for  any  other 
purpose.*     Thus,  a  gift  of  the  income  of  a  trust  fund  for  life, 

vested,  is  not  defeated  by  the  death  issue, prima  facie  refers  to  the  death 
of  all  the  children,  though  tiie  vested  of  the  remainderman  during  the  life 
interest  is  undoubtedly  liable  to  be  estate.  See  ante,  §  346.  But  it  may 
devested  in  favor  of  the  survivor  or  refer  to  the  death  of  the  remain- 
survivors  of  them,  if  any  there  be.  derman  during  the  life  of  the  tes- 
Sturgess  v.  Pearson,  4  Madd.  411.  tator,  so  that  the  children  of  a  de- 

•  Straas  v.  Rost,  10  Atl.  R.  74,  67  ceased  remainderman  who  are  alive 

]\Id.  46.'>.  at  the  death  of  the  testator  take  tiioir 

-  Heilman  v,  Heilman,  129  Ind.  oO,  parent's  share.     Outcalt  v.  Outi-alt, 

28  N.  E.  R.  :jlO;  Moores  v.  Hare  (Ind.,  42  N.  J.  E(i.  fjOO,  8  Atl.  R.  532.     See 

1896),  43  N.  E.  R.  870;  Nelson  v.  Rus-  also  authorities  cited  ante,  \)\\  729, 

sell,  135  N.  Y.  137,  31  N.  E.  *R.  1008,  730. 

reversing  16  N.  Y.  S.  39."}.     A  provis-  ^See  ante,  %%  358,  685,  680. 

ion  for  the  substitution  of  the  chil-  <  Welsh    v.    Woodbury,    144  Mass. 

dren    of  a    remainderman    for    the  542,    11   N.    E.    R.    762;    Samlford  v. 

jiarent  who  may  die;   Ixilon-  the  t<'r-  Blake,  45  N.  J.  E<i.  247,  17  Atl.  R.  812; 

minatioii   (jf  the   lift;  cstiite  Iciiviiig  Ciutrr  v.  Hunt,  10  Harb.   (N.  Y.)88; 
83 


1814  LAW    OF    WILLS.  [^  8G8, 

Avith  a  power  in  the  trustee  to  pay  over  the  principal  to  the 
life  tenant  at  his  discretion,  but  if  not,  then  on  his  death  to 
pay  to  other  persons,  gives  the  latter  vested  remainders  sub- 
ject to  the  exercise  of  the  power  to  pay  over  to  the  life  tenant.^ 
The  conferring  or  creation  of  a  merely  discretionary  power  in 
a  trustee,  or  in  the  life  tenant,  is  not  a  limitation  of  the  prop- 
erty, for  it  may  never  be  exercised.  But  as  soon  as  the  power 
is  exercised  by  the  donee  or  trustee  an  estate  is  created  which 
defeats  the  remainder.^ 

The  remainder  vests  at  the  death  of  the  testator  to  go  into 
possession  at  the  death  of  the  life  tenant  upon  so  much  of  the 
property  as  has  not  been  disposed  of  under  the  power;  and  if 
the  remainderman  shall  die  during  the  continuance  of  the  par- 
ticular estate  and  the  remainder  is  in  fee,  he  may  devise  it,  or 
if  he  shall  die  intestate  the  heirs  of  the  remainderman  will 
take  what  he  would  have  taken  had  he  survived.'  So,  too,  a  re- 
mainder to  A.,  following  a  life  estate  in  B.,  where  B,  has  a 
discretionary  power  of  appointing  the  fee  by  will,  is  a  vested 
remainder,  though  it  may  ultimately  be  w^holly  defeated  by  th& 
exercise  of  the  powder  of  a])pointment.'*  The  remainder  vests 
in  A.  subject  to  the  exercise  of  the  power  hj  the  life  tenant; 
and  if  he  does  not  appoint,  or  appoints  fraudulently,  the  re- 
mainderman takes  in  default  of  a  valid  appointment.^ 

A  direction,  "  If  there  should  be  anything  remaining  after 

Rhodes  v.  Shaw  (N.  J.),  11  Atl.  R.  116;  fault  of  the  exercise  of  the  power,  if, 

Ackerman  v.   Gorton,  67  N.  Y.  63;  apart  from  the  existence  of  the  power, 

Thomas  v.   Thomas,  1   Rawle  (Pa.),  the  estate  would  be  a  vested  estate. 

112,  and  cases  cited  ante,  §  687.  In  such  cases  the  estate  will  vest,  sul>- 

1  Harvard  College  v.  Balch,  171  III  ject  to  be  devested  by  the  exercise  of 

275,  281;  Lehnard  v.  Specht,  180  111.  the  power.  Sandford  v.  Blake,  17  Atl. 

208;  Van  Axte  v.  Fisher,  17  N.  Y.  R.  812,  45  N.  J.  Eq.  247.     A  devise  to 

401,  22  N.  E.  R.  943.  A.  during  widowhood,  with  a  power 

-See  Railsback  v.  Lovejoy,  110  III  in  her  to  divide  the  property  on  her 

442.  deatli  among  her  children,  but  if  she 

3  See  ante,  g§  687-689.  shall  fail  to  do  so,  then  remainder  to 

*  Thorington  V.  Thorington,  111  Ala,  her  three  children,  gives  A.  a  life  es- 

237.  tate  by  implication  and  her  children 

5  Cunningham  v.  Moody,  1  Ves.  174;  a  vested  remainder  in  fee,  subject  to 
Doe  V.  Martin,  4  T.  R.  39.  The  inter-  being  devested  either  by  the  deatli  of 
vention  of  a  power  of  appointment,  any  child  before  A.,  or  by  her  testa- 
general  or  special,  whether  the  estate  mentary  disposition.  Thorington  v. 
be  real  or  personal,  will  not  prevent  Thorington,  111  Ala,  237,  20  S.  R.  407. 
the  vesting  of  an  estate  given  in  do- 


§  869.]  TESTING    OF    FUTUEE    DEVISES    AND    LEGACIES.  1315^ 

the  decease  "  of  a  life  tenant,  to  whom  the  residue  is  bequeathed 
in  trust  for  his  support,  "  I  give  and  bequeath  such  residue  and 
remainder  to  D.,  her  heirs  and  assigns  forever,  provided  the 
amount  does  not  exceed  $3,000,"  gives  D.  a  vested  pecuniary 
legacy  of  that  amount,  if  so  much  remains  unexpended.^  These 
rules  are  applicable  only  where  the  power  is  discretionar}^  If 
the  power  to  appoint  is  imperative  and  special,  the  devisee  of 
the  remainder  in  fee  takes  nothing  where  there  are  persons  in 
existence  at  the  death  of  the  testator  to  whom  the  testator  has 
directed  the  fee  to  be  appointed  by  the  life  tenant.  As  equity 
will  consider  that  done  which  ought  to  have  been  done,  the  ap- 
pointees will  take  vested  interests,  which  will  vest  in  possession 
in  them  upon  default  of  an  appointment,  to  the  exclusion  of  the 
remaindermen  named.^ 

§  869.  The  vesting  of  devises  and  legacies  at  majority. — 
Instances  where  a  legacy  is  to  be  paid  to,  or  land  is  to  be  di- 
vided among,  legatees  at  majority,  or  at  some  other  specified 
age,  are  very  numerous.'  The  question  then  arises,  does  the 
mention  of  majority  or  other  age  postpone  the  vesting  until 
the  specific  age  is  attained,  or  is  the  devise  or  the  legacy  vested 
and  the  payment  only  postponed  ?  In  an  early  and  leading 
case*  where  the  testator  devised  land  in  trust  for  the  payment 
of  his  debts  until  such  time  as  his  son  should  reach  the  age  of 
twentr/-one  years,  and  when  his  said  son  should  attain  that  age, 
then  to  him  in  fee,  and  the  son  died  in  his  minority,  it  was  de- 
termined that  the  fee  vested  in  the  son  on  the  death  of  the  tes- 
tator, and  upon  the  son's  death  during  minority  it  descended 
to  liis  heir.  This  rule  has  been  generally  followed  both  in 
England  and  America.  And  though  in  most  cases  it  may 
happen  that  the  person  to  whom  the  legacy  is  payable  at  ma- 

1  Chafee  v.  Maker,  17  R  I.  739,  24  wliicli  must  be  applied  in  order  to  as- 

Atl.  R  773,     For  a  full  citation  of  certain  at  wliat  period  the  meniber- 

ca«es,  see  ante.,  %  358.  sliip  of  the  class  is  to  be  ascertained, 

2 Smith  V.  Floyd,  140  N.  Y.  337,  35  are  fully  explained  elsewhere.     See 

N.  K  R.  <500.     See  also  antp,  %%  802-  ante,  t;'^  554,  555.     The  rules  re^ulat- 

804,  as  to  the  execution  of  powers,  ing  vesting,  which  are  stated  in  tlie 

and  5i§  687,  088,  as  to  life  estates  with  text,  are  mainly  invoked  where  t  ho 

powers  of  disj)OsaL  testamentary  gift  is  to  individuals. 

'The  rules  of  constniction  applica-  where   the  class  doctrine   is  not   in 

bio  to  legacies  or  devises  to  children  (picHtion  at  all. 

as  a  chi-ss,  whieh  are  i)ayable  when  <  lioraston's  Case,  3  Co,  Kep.  li">,  1'.'. 
the  children    attain  majority,  and 


131G 


LxVW    OF    AVILLS. 


[§  8G9. 


jority  is  to  receive  the  income  tliereol"  wliile  it  is  in  trust  dur- 
ing his  minority,  this  circumstance  is  not  indispensable.  The 
same  rule  of  vesting  wouhl  apply  where  the  income  is  to  be 
applied  in  the  interim  to  another  purpose,  though  the  presump- 
tion is  more  strongly  in  favor  of  the  rule  of  vesting  where  the 
legatee  himself  is  to  receive  the  income. 

Where  a  fund  is  given  to  one  person  to  be  enjoyed  until 
another  shall  attain  his  majority,  when  it  is  to  go  to  the  latter, 
or  to  be  paid  if  or  when  the  other  shall  attain  majorit}"-,  the 
gift  on  majority  is  usually  an  executory  devise  or  a  legacy 
which  vests  at  the  death  of  the  testator,^  though  possession  is 
postponed  until  the  devisee  is  of  age. 

A  devise  or  legacv  given  in  absolute  terms,  but  which  is 
"  payable,"  or  which  is  directed  "  to  be  paid  "  or  delivered,  to 
the  beneficiary  Avhen  he  shall  attain  the  age  of  twentj^-one, 
vests  absolutely  at  the  death  of  the  testator.  The  mere  post- 
ponement of  the  payment,  being  usually  for  the  benefit  of  the 
estate,  and  not  by  reason  of  considerations  which  are  personal 
to  the  beneficiary,  does  not  prevent  the  vesting.^     The  inclina- 


1  Collier's  Will,  40  Mo.  287;  Hath- 
away V.  Leary,  2  Jones'  Eq.  (N.  C.) 
264;  Lane  v.  Goudge,  9  Ves.  225; 
Webster  v.  Parr,  26  Beav.  236;  Pear- 
man  V.  Pearman,  33  Beav.  394.  See 
also  cases  cited  in  next  note. 

2  Cox  V.  McKinney,  32  Ala.  461; 
Watkins  v.  Quarles,  23  Ark.  179;  In 
re  Rogers,  95  Cal.  526,  530,  29  Pac.  R. 
962;  Nelson  v.  Pomeroy,  64  Conn.  257; 
Bowman  v.  Long,  23  Ga.  247;  Kelly 
V.  Gonce,  49  111.  App.  82;  Allen  v. 
Van  Meter,  1  Met.  (Ky.)  264;  Dan- 
forth  V.  Talbot,  7  B.  Mon.  (Ky.)  623; 
Kimball  v.  Crocker,  53  Me.  263;  Ward- 
well  V.  Hall,  37  N.  E.  R.  196, 101  Mass. 
396,  399;  Furness  v.  Fox,  1  Cash. 
(Mass.)  134, 1.36;  Eldridge  v.  Eldridge, 
9  Gush.  (Mass.)  516,  519;  Claflin  v. 
Claflin.  149  Mass.  19, 23;  Sears  v.  Put- 
nam, 102  Mass.  5;  Fuller  v.  Winthrop, 
3  Allen  (Mass.),  51,  60;  Toms  v.  Will- 
iams. 41  Mich.  552;  Hogan  v.  Hogan, 
102  Mass.  641,  01  N.  W.  R.  73;  Brown 
V.  Brown,  44  N.  H.  281;  Benton  v. 
Benton,  66  N.  H.  169,  20  AtL  R  365; 


Dawson  v.  SchaefTer,  52  N.  J.  Eq.  341, 
30  Atl.  R.  91;  Drake  v.  Bell,  3  Edw. 
(N.  Y.)  251;  Converse  v.  Kellogg,  7 
Barb.  (N.  Y.)  590;  Marsh  v.  Wheeler, 
2  Edw.  Ch.  (N.  Y.)  163;  Sweet  v.  Ciiase, 
2  N.  Y.  73,  79;  Roome  v.  Phillips,  24 
N.  Y.  465;  Stevenson  v.  Leslie,  70 
N.  Y.  512;  In  re  Murphy.  144  N.  Y. 
557,  39  N.  E.  R.  691;  Birdsall  v.  Hew- 
lett, 1  Paige  (N.  Y),  32;  Van  Camp 
V.  Fowler,  13  N.  Y.  S.  1,  59  Hun,  311; 
Harris  v.  Fly,  7  Paige  (N.  Y),  421; 
Hoxie  V.  Hoxie,  7  Paige  (N.  Y.),  187; 
In  re  Grossman,  1  N.  Y.  S.  103;  Aid- 
rich  V.  Green,  48  Hun,  619,  1  N.  Y.  S. 
549;  Patterson  v.  Ellis,  11  Wend. 
(N.  Y.)  259;  Goebel  v.  Wolf,  113  N.  Y. 
405;  Braunsdorf  v.  Braunsdorf,  23 
N.  Y.  S.  72;  Nunney  v.  Carter,  5 
Jones' Eq.  (N.  C.)  370;  Hathaway  v, 
Leary,  2  Jones'  Eq.  (N.  G.)  264;  In  re 
Jeremy's  Estate,  178  Pa.  St.  477,  35 
Atl.  R.  847;  Scott  v.  Price,  2  S.  &  R 
(Pa.)  59;  Reed's  Appeal,  118  Pa.  St. 
215;  Bayard  v.  Atkins,  10  Pa.  St.  17, 
18;  Schnure's  Appeal,  70  Pa.  St.  400; 


§  869.]  VESTING    OF    FUTURE   DEVISES    AND    LEGACIES.  1317 

tion  of  the  courts  is  to  favor  vested  legacies  "whenever  this  can 
be  done  consistently  with  the  expressed  intention  of  the  testa- 
tor.^ So,  too,  in  the  same  manner  and  with  a  similar  effect,  are 
to  be  construed  words  directing  payment,  division  or  distribu- 
tion at  a  future  date,  coupled  with  a  positive  gift  of  a  legacy 
which  by  its  terms  is  not  contingent."^  Accordingly,  where  a 
legacy  is  pa^'able  to  legatees,  to  whom  it  has  been  given  by 
proper  language,  "  when  each  sliall  attain  the  age  of  twenty- 
one,"  or  as  "  they  severally  become  of  age,"  or  "  when  they 
marry,"  or  "after  the  death  of  A.,"  or  on  their  " arrival  at 
their  respective  birthdays,"  or  where  legacies  are  given  to  be 
paid  after  the  debts  of  the  testator  have  all  been  paid,'  or  as 
soon  as  the  assets  of  his  estate  have  been  converted  into  ready 
money,  or  when  an  outstanding  mortgage  shall  liave  been  col- 
lected, or  when  land  devised  for  the  payment  of  legacies  shall 
have  been  sold,  or  the  legacy  is  payable  at  any  other  future 
date,  the  legacy  is  vested,  and  the  postponement  of  the  pay- 
ment does  not  alone  make  it  contingent.  In  such  cases,  the 
postponement  being  for  the  benefit  of  the  estate,  if  the  legatee 
dies  before  the  date  of  payment  has  arrived,  the  legacy  must 
be  paid  to  his  personal  representatives.*  Where  the  testator 
has  placed  a  fund  in  trust  for  the  purpose  of  applying  both  the 
principal  and  the  interest  or  income  to  the  supjiort  of  his  chikl 
during  that  child's  minority,  with  a  direction  that  all  not  spent 
for  the  child's  support  shall,  on  her  attaining  her  majority,  l)e 
paid  to  her,  but  if  the  child  shall  die  under  twenty-one  then 
over,  the  court  held,  after  supplying  the  words  "  without  issue," 
that  the  child  took  a  vested  estate  which  went  to  her  issue, 

Buckley  v.  Read,  ir>  Pa.  St.  83;  Bow-  z.See  §  860. 

man's  Appeal,  M  Pa.  St.  19;  Youn^  3Small  v.  Winp;,  5  B.  P.  Toinl.  60. 

V.  Stoner,  \i7  Pa.  St.  10 J;    Pond  v.  -"In  re  Murphy,  144  N.  Y.  rMT,  39 

Allen,  2   Atl.   R.  302,   Kt  R.  I.   171;  N.  K.  R.  (591.  and  cases  cited  in  note  2. 

Baker  v.  McLeod,  48  N.  W.  R.  0.")7,  jtu^e  1310.     In  Sidney  v.  Vauf^iian,  2 

79  Wis.  .'534;  McReynolds  v.  Graham,  B.  P.  C.  Tonil.  254,  a  legacy  was  to 

43  S.  W.  R.  138  (Tenn..  1897).  he  paid  six  months  after  tlie  It'K'atee 

'  Tims,  u  devise  as  follows:  "I^'ve  should   have  comjiletcd   his  appreii- 

to  1).  the  resiilue,  a  suflieicnt  amount  ticeshij).  Tlie  l<';x<'itet«al(seonded  from 

t^j  he  used  to  (vliirati*  him  hefon;  he  his  master  ix-foni  the  end  of  his  ap- 

iMjcomes  of  a^e,  hut  if  In-  do  not  live  iircnticcship  and  iicvrr  comidt'ted  it. 

to  lieir  it  then  to  a  eliarity,"  cri'ates  But  upon   ids  death  hit}  representa- 

H  v('st<'d   lej^aey.     Kiinhh-  v.  White,  tive  took. 
.VJ  N.  J.  i:<|.  WH,  21  Atl.  R.  400. 


1313  LAW    OF    WILLS.  [§  870; 

■when  she  died  leaving  issue,  though  she  died  before  reaching 
the  age  of  twenty-one,^  Inasmuch  as  the  position  of  the  words 
of  a  will  is  immaterial  in  construing  it  to  find  out  the  inten- 
tion of  the  testator,  it  does  not  matter  at  all,  in  determining 
whether  a  legacy  or  a  devise  is  contingent,  that  the  words 
directing  distribution,  division  or  payment  precede  or  follow 
the  words  of  gift  by  which  the  vested  interest  is  transferred. 

§  870.  Contingent  legacies  which  vest  only  at  the  major- 
ity of  a  legatee. —  Xot  every  legacy  which  is  made  payable  at 
the  majority  of  the  legatee  vests  in  him  at  the  death  of  the 
testator.  If  it  shall  appear  that  the  testator  intends  that  the 
attainment  of  majority  by  the  legatee  shall  be  a  condition  pre- 
cedent, not  only  to  the  payment  of  the  legacy,  but  to  its  vest- 
ing as  well,  the  legacy  will  be  contingent  upon  the  legatee 
attaining  his  majority.-  A  legacy  to  be  paid  "•  when  the  lega- 
tee comes  of  age^''  or  when  he  "  arrives  at  the  age  of  twenty- 
one  years,"  or  a  legacy  which  is  payable  simply  "  at  majority^'' 
or  "  if "  or  "  in  case  the  legatee  reaches  majority,"  may  or 
may  not  be  contingent  according  to  the  context  read  in  con- 
nection with  the  circumstances.  The  inclination  of  the  courts 
is  to  construe  legacies  of  this  sort,  where  words  importing  con- 
tingency are  employed,  and  the  only  gift  is  the  direction  to  pay, 
as  legacies  contingent  upon  the  attainment  of  majority  by  the 
legatee,  unless  there  is  somewhere  in  the  will  clear  language 
of  gift  creating  a  vested  legacy.  But  if  property  is  first  given 
to  A.  absolutely,  and  it  is  to  be  delivered  to  him  when  he  at- 
tains majority  or  at  majority,  the  interest  of  A.  will  be  con- 
clusively presumed  to  vest  at  the  death  of  the  testator,  and  the 
reference  to  majority  will  be  restricted  to  the  vesting  of  the 
property  in  possession  and  enjoyment,  either  in  him  or  in  his 
representatives.  The  presumption  that  a  legacy  is  vested  is 
materially  strengthened  if  the  testator  has  dh^ected  the  income 
to  be  laid  out  for  the  benefit  of  the  legatee  during  his  minor- 
ity.' 

But  w^here  no  express  language  indicating  the  giving  of  an 
immediate  present  gift  is  used,  and  the  only  directions  of  the 
"will  are  that  a  legacy  shall  be  paid  A.,  or  he  is  to  receive 
money  or  other  property  at  majority,  or  when  or  if  he  shall 

1  Baker  v.  McLeod,  79  Wis  534,  541.  2  Ante,  §  503.  3  See  §  872. 


f  870.]  TESTING    OF    FUTURE    DEVISES    AXD    LEGACIES.  1319 

attain  majority,  and  particularly  if  the  property  is  undisposed 
■of  during  his  minority,  the  legacy  to  A.,  is  contingent  upon 
A.'s  attaining  his  majority.  And  if  it  is  clear  that  the  attain- 
ment of  a  given  age  by  a  legatee  is  a  condition  precedent  to 
the  vesting  of  the  legacy,  it  will  be  contingent,  though,  be- 
sides the  direction  to  pay,  there  shall  be  the  express  language 
of  gift} 

The  question  of  the  determination  of  the  character  of  a  de- 
vise or  a  legacy,  whether  it  is  or  is  not  to  be  taken  as  vested 
or  contingent,  must  be  decided  upon  the  context  of  the  will, 
which  is  to  be  taken  in  connection  with  the  disposition  of  the 
property  made  during  the  minority  of  the  legatee  to  whom  it 
is  ultimately  to  go.  A  disposition  of  property  "  to  he  Tzejjt  to- 
gether "  by  the  executor  until  the  daughter  of  the  testator  shall 
arrive  at  her  majority,  "  and  when  she  becomes  of  age  or  mar- 
ries she  is  to  have  it;  "  ^  or  a  devise  under  which  A.  is  to  receive 
a  legacy  '•'"wheii  he  arrives  at  the  age  of  twenty-one;  '"^  or  leg- 
acies which  are  given  to  several  "  if  they  shall  live  to  come  of 
age ; "  *  or  a  legacy  to  a  person  when  he  shall  hecome  of  age  or 
marry,  or  at  the  death  of  another;^  or  a  direction  to  pay  a 
sum  of  money  to  A.  at  the  death  of  B.,  "  if  A.  shall  have  ar- 
rived at  the  age  of  twenty-eight  years,"®  is  contingent  and 
does  not  vest  at  the  death  of  the  testator.^    "Where  the  attain- 

1  Knight  V.  Cameron,  14  Ves.  389;  514;  Collier's  Will.  40  Mo.  287;  John- 
Lister  v.  Bradley,  1  Hare,  10;  Heath  son  v.  Valentine,  4  Sandf.  (N.  Y.)  3G, 
V.  Perry,  3  Atk.  101.  37;    Butler    v.    Butler,   3   Barb.   Ch. 

2  Colfier  v.  Slaughter,  20  Ala.  263;  (N.  Y.)  304;  Tayloe  v.  Gould,  10  Barb. 
Allen  V.  Whittaker,  34  Ga.  6.  (N.  Y.)  388;  In  re  Seaman,  147  N.  Y. 

3  Moore  v.  Smith,  9  Watts  (Pa.),  69;  Hathawaj'  v.  Leary,  2  Jones' 
403;  Giles  V.  Franks,  2  Dev.Eq.  (N.C.)  Eq.  (N.  C.)  264;  Sims  v.  Smith,  G 
521.  Jones'  Eq.  (N.  C.)  347 ;  Seibert's  Ajv 

« Jackson  v.  Winne,  7  Wend.  (N.  Y.)  peal,  13  Pa.  St.  501;  Gilliland  v.  Bur- 

47.  den,  63  Pa.  St.  393;  Moore  v.  Smith, 

5  Snow  V.  Snow,  49  Me.  159.  9  Watts  (Pa.),  47;  and    also    cases 

*  Crossman  v.   Grossman,   0  Dem.  cited  ante,  %  508,  note  2,  page  668.    It 

Sur.  148.  is    elsewliere    pointed   out   an<l  ex- 

'  See  further,  in  reference  to  leg;ir  plained  tliat  a  contingent  devise  ia 
cies  contingent  until  majority  and  remainder  to  cliildreii  of  a  life  ten- 
as  su.staining  the  rule  of  the  te.xt,  ant  as  a  class,  to  vest  in  tluMu  oiilij 
Travis  V.  Morris<jn,  28  Ala.  191;  Scott  an  they  attiiin  iinijority,  vests  in  all 
V.  I-«ogan,  23  Ark.  351;  Colt  v.  Hub-  the  members  of  the  class  as  they  are 
bard,  33  Conn.  281;  Eager  v.  Whit-  born,  and  wlictln'r  they  become  of 
ney,  163  Mass.  403,  40  N.  E.  K.  1040;  ago  during  the  lifetime  of  the  par- 
Leeds  V.  Wakelield,  10  Gray  (Mass.),  ent  or  after   his  deatlu    See  ««/e. 


1320  LAW  OF  WILLS.  [§  870. 

merit  of  a  particular  age  is  a  constituent  part  of  the  description 
of  the  members  of  the  class  who  are  to  take  a  gift  inter  se,  as 
where  the  gift  is  to  such  children  as  shall  attain  majority,  or  to 
such  children  who  may  attain  Tnajority,  the  gift  is  contingent 
until  it  shall  be  ascertained  who  will  in  fact  attain  majority, 
there  being  no  gift  infuturo  except  to  those  persons  who  com- 
jiose  the  class  as  it  is  described.' 

In  all  the  cases  so  far  considered  in  this  section  where  the 
legacies  were  construed  to  be  contingent,  the  gift  was  based 
upon  a  condition  precedent,  expressed  or  implied,  that  the  leg- 
atee should  attain  an  age  specified.  It  was  necessary  that  a 
certain  definite  and  fixed  period  of  years  should  elapse  before 
the  gift  could  vest.  Where  there  is  a  direction  to  pay  at  or 
after  a  sjyecijied  and  definite  period  of  years  has  elapsed,  and 
nothing  more,  the  presumption  that  the  legacy  is  vested  is 
stronger  than  where  the  direction  is  to  pay  at  the  end  of  a 
period  which  may  be  longer  or  shorter  in  duration  according 
to  the  event.  Accordingly,  though  a  legacy  couched  in  posi- 
tive words  of  gift,  but  to  be  paid  icheii  the  debts  are  lyald,  or 
when  the  estate  is  all  in,  might  be  and  it  usually  is  a  vested 
legacy,  a  mere  direction  to  pay  or  a  direction  to  divide  or  dis- 
tribute among  legatees  as  much  as  may  be  left  after  all  debts- 
are  paid,-  or  to  divide  the  proceeds  of  land  which  is  devised  ta 
trustees  for  the  sole  purpose  of  a  sale,  may  be  a  contingent 
legacy.  So  alwa3^s,  a  fortiori,  where  the  postponement  of  the 
distribution  or  payment  is  not  until  the  expiration  of  a  defi- 
nitely fixed  period,  or  of  a  period  which  is  certain  to  come  to 
an  end  sooner  or  later,  though  apt  to  be  prolonged  by  the  ac- 
tion of  the  trustees  or  executors,  but  when  the  payment  of  the 
legacy  is  to  take  place  only  upon  the  happening  of  an  event, 
or  on  the  concurrent  happenings  of  several  events,  some  or  all 

§  347,  page  466.    Cruse  v.  Barley,  3  tains  the  age  of  twentj'-one  I  desire 

P.  W.   20;    Stapleton  v.   Cheales,   2  my  real  estate  to  be  divided  among 

Vernon,  673;  Harvey  v.  Harvey,  2  P.  my  children  equally,  their  heirs  and 

W.  21:  Onslow  v.  Smith,  1  Eq.  Cases  the  survivor,"  gives  the  children  con- 

Ab.  295,  Cloberry  v.  Lampen,  2  Ch.  tingent  interests  which  depend  upon 

Cas.  155;  Smell  v.  Dee,  2  Salk.  415,  their  living  until  the  youngest  child 

are  some  of  the  early  cases  upon  this  attains  full  age.     McClain  v.  Cai)per 

question  of  the  vesting  of  personal  (Iowa,  1896),  67  N.  W.  R.  102. 

legacies.  -  Bernard  v.  Montague,  1  Mer.  422» 
^"When   my  youngest    child  at- 


§  871.]  TESTI>-G    OF    FUTURE    DEVISES    AXD    LEGACIES.  1321 

of  which  may  never  happen  at  all,  the  legacy,  whether  given 
by  direct  language  or  merely  by  a  direction  to  pay,  is  contin- 
gent. 

§  871.  The  effect  of  a  limitation  over  on  death  during 
niiuoritj  as  vesting  a  legacy. —  A  legacy  or  devise  payable  or 
to  be  conve3'ed  {/",  icJien  or  in  case  the  legatee  or  devisee  reaches 
his  majority  or  some  other  age,  or  if  or  when  he  or  she  marries, 
by  which  language  the  gift  is  admitted  to  be  contingent,  may 
be  rendered  vested  by  a  limitation  over  in  case  the  legatee  dies 
during  his  or  her  minority,  or  before  his  or  her  marriage. 
Thus,  where  laud  was  devised  to  A.  in  fee  simple,  "if  it  should 
happen  that  he  shall  attain  the  age  of  twenty-one  years " 
(which  was  clearly  a  contingent  devise),  but  on  his  death  be- 
fore that  age  then  over  to  others  in  fee,  the  gift  was  taken  to 
vest  in  A.  immediately  at  the  death  of  the  testator,^  but  de- 
feasible by  his  death  under  majority  either  before  or  after  the 
death  of  the  testator.'  The  giving  of  the  property  to  others 
upon  the  death  of  the  legatee  before  the  event  happens  is  con- 
strued to  indicate  that  the  testator  meant  that  the  devise  or 
legacy  should  vest  at  his  death,  and  that  it  should  be  indefeasi- 
ble upon  the  happening  of  the  event.  If  the  vesting  of  the 
title  of  the  gift  was  only  to  take  place  if  or  in  case  the  legatee 
reached  his  majority  or  married,  that  is,  if  the  gift  is  contin- 
gent, there  icoidclhe  no  necessity  for  a  limitation  over  on  his 
death  prior  thereto,  for  the  law  would  hnphj  that.  The  bene- 
ficiary takes  a  defeasible  vested  estate  upon  a  condition  sul)se- 
(juent,  which  is  fulfilled,  and  the  estate  becomes  indefeasibly 
vested  on  the  happening  of  the  event.  This  rule  of  construc- 
tion is  ecjually  applicable  to  cases  where,  on  the  death  of  the  lega- 
tee under  age,  the  pnjperty  is  to  go  over  to  his  issue,'  and  where 
it  is  to  go  to  some  stranger.  And  it  is  also  applicable  to  gifts 
to  classes.  And  the  fact  that  the  fee  of  the  estate  is  vested  in 
tru.stees  as  well  as  the  interim  interest  is  not  material  to  vary 
tiic  construction.*     Thus,  in  the  very  commcm  case  of  a  gift  to 

•IMwanis  v.  Ifiiniiuond.  3Lev.  132,         <  I'liii.ps  v.  ^Villi:llns.  ".  Sim.    II.  9 

2  SIkjw.  :5!)H.  followctl  in  Doi;  <l.  Hunt  CI.  &  F.  .")«;!.     Set;  also  Nixon  v.  Roh- 

V.  Moore,  11  Kast,  <iOI;   I)<mj  d.  H<.:ik(!  ••its.  21  .Ma.  i\M\\  (iriKsiiy  v.  Ih-t'cUiii- 

V,  Nowcll,  1  Mavil«  &  SeL  327,  5  Dow,  rid^t',  12  M.  Moii.  (Ky.)  032;  Wallin^'- 

202.  foi'l  V.  I).'  H.'ll,  l.'»  \\.  .Moll.  (Ky.)r)31: 

2;;  ;j|2.  Daii-  V.  Wliitc.  33  Conn.  21)3;  Young 

M)a\v.son  V,  .Scliaufer,  52  N.  J.  l^i.  v.  SLmht,  .".T  I'a.  St.  lo.".. 
311. 


1322  LAW    OF    WILLS.  [§  871. 

the  children  of  a  life  tenant,  to  be  paid  to  them  as  they  shall 
attain  the  age  of  twenty-one,  the  remainder  vests  in  them  as 
soon  as  they  are  born,  but  it  is  defeasible  as  to  any  of  them 
who  shall  die  before  he  or  she  attains  majority.^  So,  too,  a  gift 
to  one  by  name  in  fee,  payable  at  majority,  with  a  gift  over  in 
case  of  his  death  without  issue  under  majority,  is  vested  if  he 
survive  the  testator,  and  upon  the  death  of  the  legatee  during 
minority  leaving  issue,  the  issue  will  take  the  fee  by  descent 
from  him."  The  same  principle,  that  the  devisee  shall  take  a 
vested  estate  though  payment  or  enjoyment  be  postponed  until 
majority,  is  applicable  where  any  other  event  than  death  with- 
out issue  is  employed  in  connection  with  the  death  of  the  lega- 
tee during  his  minority.' 

The  presumption  that  a  vested  gift  is  intended  which  arises 
from  the  property  being  given  to  others  upon  the  death  of  the 
first  taker  under  majority  may  be  rebutted  by  an  express  dec- 
laration that  the  testator  does  not  mean  the  title  to  vest  in  the 
beneficiary  unless  he  shall  attain  the  age  of  twenty-one.  Under 
the  rule  of  construction  which  is  based  upon  the  effect  and 
operation  of  a  gift  over  in  case  of  death  under  minority  by 
which  the  gift  is  vested,  there  has  arisen  a  distinction  between 
a  devise  to  an  individual  or  a  class  "  {/""  or  "  when  "  he  or  they 
attain  twenty-one  years  of  age,  with  a  gift  over  in  case  of  death 

1  See  also  §  366.  should  attain  majority,  and  if  any 
-  Baker  v.  McLeod,  79  Wis.  534,  48  child  should  die  leaving  an  heir,  then 
N.  W.  R  657.  See  cases  cited  note  2,  such  heir  to  take  his  parent's  sliare, 
p.  504.  vests  in  the  children  at  the  death  of 
3  A  direction  that  the  widow  of  the  the  testator,  and  on  the  death  of  a 
testator  shall  have  the  use  of  the  res-  child  leaving  a  son  before  the  young- 
idue  during  life,  and  then  to  his  son  est  child  reached  majority,  the  grand- 
in  fee,  but  if  the  widow  and  son  son  took.  Dawson  v.  Schaefer,  30  Atl. 
should  die  before  the  latter  attains  R.  91.  52  N.  J.  Eq.  341;  Braunsdorf  v. 
theageof  twenty-one  then  to  A., gives  Braunsdorf,  23  X.  Y.  S.  722.  The  tes- 
the  son  a  vested  remainder  in  fee,  tator  gave  to  A.  and  directed  that 
which  becomes  indefeasible  when  principal  and  accumulated  income 
the  son  reaches  his  majority.  The  should  be  paid  him  if  he  were  twenty- 
gift  to  A.  is  an  executory  devise  con-  eight  years  of  age  at  the  death  of  a 
tingentuponA.surviving  the  widow,  life  tenant,  but  if  A.  died  without 
and  the  death  of  the  son  under  his  issue  under  twenty-eight  then  over, 
majority.  Shadden  v.  Hembree,  17  The  gift  vested  absolutely  as  soon  as 
Oreg.  14,  18  Pac.  R  572.  A  devise  to  A.  became  twenty-eight,  and  was  not 
children  noniinatim  on  condition  divested  on  his  subsequent  deatli 
that  tliey  should  not  have  absolute  witliout  issue.  Grossman's  Estate,  48 
control    until    the    youngest    child  Hun,  617. 


§  872.]  VESTING    OF    FUTUKE    DEVISES    AND    LEGACIES.  1323 

under  majority,  and  a  devise  to  ^^such  of  a  class  as  shall  attain 
tuoenty-one^''  with  a  similar  gift  over.  The  latter  devise  is  con- 
tingent. Xo  absolute  gift  is  made.  The  gift  is  to  persons  or  to 
a  class  who  attain  fall  age,  and  the  attainment  of  full  age  is  a 
part  of  the  description  of  the  legatees.  A  person  who  does  not 
answer  to  the  description  has  no  right  to  the  legacy.  In  other 
words,  the  attainment  of  majority  is  a  condition  precedent  to 
the  vesting  of  the  legacy.^  But  where  the  gift  is  to  A.  at  ma- 
jority, with  a  devise  over  if  he  does  not  reach  majority,  the  gift 
is  vested.  [Majority  is  not  used  to  describe  the  legatee,  but 
merely  and  solely  to  show  when  he  is  to  come  in  possession 
and  enjoyment,  and  this  too  very  appropriately  at  that  age 
when  the  law  permits  him  to  alien  and  to  incumber,  and  pre- 
sumably by  that  time  nature  has  endowed  him  with  the  faculty 
of  caring  for  his  property.  And  if  a  provision  for  several  chil- 
dren as  a  class  is  contingent  upon  their  surviving  until  the  tes- 
tator's youngest  child  attains  the  age  of  twenty-one  years,  and 
the  testator  then  expressly  provides  for  a  disposition  over  upon 
the  death  of  any  child  under  twenty-one  and  without  issue,  a 
child  Avho  attains  his  majority,  but  who  does  not  also  survive 
until  the  testator's  youngest  child  attains  majority,  does  not  take 
a  vested  estate,  though  the  ordinary  rule  is  that  a  devise  over  on 
the  death  of  a  beneficiary  under  majority  without  issue  gives 
an  absolute  estate  by  implication  on  the  attainment  of  that 
age.'^ 

§  872.  The  effect  of  a  gift  of  the  intermediate  income  on 
the  Testing  of  a  legacy. —  A  legacy  wliich  is  payable  in  the. 
future,  as  on  the  marriage  or  the  majorit}^  of  a  legatee,  and  is 
contingent  by  the  express  terms  of  the  will,  may  vest  at  the 
death  of  the  testator  by  reason  of  a  direction  that  the  income 
of  the  fund  is,  in  tiie  meantime,  to  be  employed  for  the  benelit 
of  the  legatee  to  whom  it  is  to  be  paid  in  the  future.  This 
rule  will  apply  not  only  to  a  legacy  which  is  to  be  paid  to  A. 
{/",  ov provided,  or  in  case  he  shall  attain  or  v^flicn  ho  shall  at- 
tain the  age  of  twenty-one,  but  alscj  to  a  h'gaiy  which  is  to  be 

J  Festinpf  v.  Allen,  12  Mf**.  &  WhIs.  duriiif^  his  inaj<irity,  with  w  dcviso  of 

279,  5  Hiire.  573;  Hull  v.  I'litchunl,  5  th(!  vurim»  to   \\.  if  A.  shall  dio  dur- 

Hare,  5(57.  in;^   minority,  imd    no   provision    is 

-The  class  of  caw.'S  consiilcrod  in  niado  disposinn  of  tlui  cor/iH-s  in  fa.so 

this  Hcction   muHt  Inj  distinguished  A.  shall  attain  full  a^e.    These  cuaeH 

from  thfjse  whore  income  is  given  A.  are  treated  fully,  anlv,  %  407 


1324:  LAW    OF    WILLS.  [§  872. 

paid  to  a  legatee  upon  his  or  licr  marriage  with  consent,  and 
which  legacy  is  of  course  contingent  upon  the  marriage  being 
with  consent.^  The  presumption  that  a  legacy  which  is  to  be 
paid  in  the  future  is  a  vested  legacy  is  very  strong  where  the 
testator  gives  a  legacy  expressly  and  then  directs  his  executor 
io  j)(fy  interest  thereon  eo  nomine  to  the  legatee  from  his  death, 
for  interest  is  the  payment  of  compensation  for  a  forbearance 
in  collecting  the  money  upon  which  it  is  paid,  and  its  payment 
implies  the  absolute  ownership  of  the  principal  in  the  person 
who  receives  the  interest. 

But  the  inference  that  the  testator  intends  to  give  a  vested 
legacy,  payable  infutu7'o,\B  equally  strong  where  he  gives  the 
interim  income  of  the  legacy  to  be  laid  out  for  the  benefit  of 
the  ultimate  legatee,  provided  he  gives  all  of  it  for  that  ))ur- 
pose,  with  a  direction  that  when  the  legatee  attains  majority 
or  marries  the  corjnis  shall  be  paid  to  him.  Thus,  legacies 
which  are  to  be  paid  to  A.,  B.  and  C.  when  they  shall  respect- 
ively attain  the  age  of  twenty-one  years  or  shall  marry,  with 
a  direction  that  the  interest  of  the  securities  which  were  thus 
bequeathed  should  be  devoted  to  the  support  of  the  legatees 
until  marriage  or  majority,  vest  at  the  death  of  tlie  testator.'- 

A  distinction  has  sometimes  been  made  between  the  giving 
of  the  interest  eo  nomine,  which  accrues  on  a  legacy  before  its 
payment,  and  a  gift  of  income  stated  to  be  "  for  the  purpose 
of  support  or  education."  If  the  income  is  for  support,  and 
the  legatee  dies  in  minority,  his  support  ceases,  and  the  legacy 
would  seem  to  be  contingent.  Some  authorities  appear  to  place 
more  dependence  upon  the  circumstance  that  the  executor  is 
directed  to  pay  accruing  interest  to  the  legatee  as  showing  an 
intention  to  vest  the  legacy  than  upon  a  direction  to  apply  in- 
come for  the  minor's  support.^  But  the  distinction  is  not  no- 
ticed by  the  American  cases  nor  by  those  Avhich  have  been 

1  Keily  v.  Monck,  3  Ridg.  P.  C.  203 ;  Winthrop,  3  Allen  (Mass.),  51, 61 ;  Ord- 

Elton  V.  Elton,  3  Atk.  504.  way  v.  Dow,  55  N.  H.  11:  Tucker  v. 

-Hanson  v.  Graham,  6  Ves.  239;  Bishop,  16  N.  Y.   402;   Patterson  v. 

Lane  v.  Goudge,  9  Ves.   225;  Hoath  Ellis,  11  Wend.  (N.  Y.)259;  Kimball 

v.  Hoath,  2  Bro.  C.  C.  3;  Bird  t.  May-  v.  White,  50  N.  J.  Eq.  88,  24  Atl.  R. 

bury,  33  Beav.  351 ;  Fonnereau  v.  Fon-  400,  and  cases  in  note  1,  page  1325. 
nereau,  3  Atk.    645;    In    re    Peek's        ^  in  re  Ashmore's  Trusts,  L.  R.  9 

Trusts,  L.  R,  16  Eq.  221;    Fuller  v.  Eq.  99. 


§  872.]  TESTING    OF    FUTUEE    DEVISES   AND    LEGACIES.  lo2o 

most  carefully  considered  by  the  English  courts.^     In  both  cases 
the  legacy  is  vested. 

It  has  also  been  suggested  that  where  the  testator  gives  the 
income  of  a  fund  to  the  legatee  until  he  reaches  majority,  and 
then  directs  that  the  principal  is  to  be  then  paid  him,  and  this 
direction  is  the  first  and  only  mention  of  the  princi])al,  the 
gift  of  the  corjnts  is  not  vested,  though  the  gift  of  the  income 
is.-  But  the  force  of  this  rule  of  construction  has  also  been, 
denied,^  and,  even  if  admitted,  the  rule  should  not  be  much  ex- 
tended, as  the  grouping  of  single  words  is  never  decisive  of  the 
testator's  meaning.  If  the  language  of  the  gift  of  a  future 
leg.acy  is  expressly  contingent,  the  fact  that  the  trustees  are 
directed  to  apply  only  a  ixirt  of  the  interim  income^  or  that 
they  have  a  discretion  to  employ  such  income,  or  as  much  of 
it  as  they  may  think  proper,  to  the  support  of  the  legatee,^  or 
that  they  are  directed  to  accumulate  the  income  during  mi- 
nority, and,  adding  it  to  the  corpus^  pay  them  over  together,^ 
will  not  render  the  future  legacy  vested.  If,  however,  the 
trustees  are  imperatively  directed  to  apply  the  whole  income 
to  the  legatee's  support,  or  if  the  whole  interim  income  is  given 
in  express  terms  for  his  support,  though  the  trustees  have  a 
discretion  to  apply  less  than  the  whole^  the  legacy  is  vested.  A 
gift  of  the  income  ma}''  vest  a  future  legacy  which  is  given  to 
a  class  as  well  as  a  future  legacy  given  to  an  intlividual.  But 
it  must  clearly  appear  that  the  gift  of  the  income  is  to  each 
member  of  the  class  separately,  so  that  each  member  has  a 
vested  right  to  an  independent  share  in  the  income  during  his 
minority,  whether  for  his  support  or  expressly  as  interest  on  a 
deferred  payment  of  a  legacy  due.  For  where  the  interim  in- 
come is  merely  given  in  trust  generally  for  the  sujiport  of  tlie 

•Stevenson  v.  Le.sley,  70  N.  Y.  012;  -' Biit.sfonl  v.  Kobhell,  3  Ves.  303. 

Van   Wyck   v.  Blcxxl^rMjil,   1    Hnidf.  3\Vest\vood    v.    Soutliey,    3    Sim. 

(N.  Y.)Sur.l.'51;  Uniuns.loif  v.  Bniuiis-  (N.  S.)  192. 

(lorf.  23  N.   Y.  Siipp.  722;  Sawyer  v.  ■•  rul.sfurd  v.  Hunter,  3  Bro.  C.  C. 

CuJiliy,   140   N.    Y.    1U2;    iJaw.son   v.  410. 

Schaefcr,  .V2  N.  J.   Ivj.  341:  Proven-  »  Leako  v.  llobin.son,  3  Mor.  303, 383, 

cheres  Ai»|>eal,  07  Pu.  St.  403;   Pett-r-  384. 

Hfjn'.s  A|)|M'^1,  88  Pa.  St  307;  KolnTts'  "In  ro  (Jrini.shaw's  Trust,  L,  It.  11 

ApiKral,  Tt'.)  Pa.  St.  70;  Valentino  v.  Cli.  Div.  400. 

Il<jr<Jen,  KK)  Mans.  273;  Haker  v.  Mc-  'Fox  v.  Tux,  L.  li.  19  Ecj.  280. 
I>H><1, 7y  Wi.s.  .'>34.     And  hco  albo  cusea 
cited  iu  note  2,  i»age  008. 


132G  LAW   OF   WILLS.  [§  872, 

class  as  a  Avhole,  until  they  shall  receive  the  legacy  without 
any  apportionment  among  them,  it  does  not  raise  any  pre- 
sumption, in  the  absence  of  words  of  vesting,  that  the  future 
legacy  is  vested.^ 

ISTo  rule  of  law  prevents  the  testator  from  giving  a  vested 
interest  in  income  to  A.  until  his  majority,  with  a  contingent 
legacy  payable  only  if  ov  provided  he  shall  attain  majority,  pro- 
vided this  intention  is  evidenced  by  apt  language.  Thus,  for 
example,  if  the  testator  expressly  states  money  is  to  be  divided 
among  a  class  when  they  respectively  reach  their  majority,  hut 
■'fthey  die^  in  no  ease  to  go  to  their  jyersonal  representatives,  with  a 
direction  to  pay  over  income,  which  vests  it,  the  gift  of  the  corpus, 
being  expressly  contingent  upon  survivorship,  continues  so.^  So, 
too,  this  would  be  the  construction  wliere  the  gift  of  the  prin- 
cipal and  of  the  income  of  a  legacy  is  in  fact  but  one  insepara- 
ble and  indivisible  gift,  as  would  be  the  case  where  the  executor 
is  directed  to  pay  a  specific  sura  vrith  interest  to  A.  ^y  he  shall 
reach  majority,^  or  to  pay  a  fund  or  to  deliver  securities  with 
all  income  lohich  may  have  accumulated  added  to  them  if  the 
legatee  shall  attain  his  majority.*  On  the  other  hand,  if  the 
fund  or  the  thing  which  is  bequeathed  is  to  be  severed  from 
the  estate  at  the  death  of  the  testator  for  the  advantage  of  the 
legatee,  though  it  is  to  be  paid  or  to  be  delivered  to  him  only 
at  his  majority,  and  in  the  meantime  the  income  is  to  accumu- 
late and  to  go  with  the  corpus,  the  latter  is  undoubtedly  vested.^ 
A  devise  in  trust  for  A.,  to  be  held  hj  the  trustee,  who  is  di- 
rected to  apply  the  income  to  A.'s  support,  with  power  to  rent 
and  repair  the  premises,  vests  an  absolute  fee  simple  in  A.,  and 
not  merely  an  interest  in  the  income  until  he  attains  majority.^ 
A  direction  to  apply  income  to  a  minor's  support,  with  a  gift 
of  the  corpus  to  him  on  his  attainment  of  majority,  "  but  if  he 
die  under  majority  "  then  over,  means  death  during  minority 
without  issue.     The  minor  takes  a  vested  estate,  and  on  his 

1  Lloyd  V.   Lloyd,  3  K   &  J.   20;  240;  Love  v.  L'Estrange,  5  B.  P.  C. 

Hunter's  Trusts,  L.  R,  3  Eq.  298.  Toml.  59;  Oddie  v.  Brown,  4  De  Gex 

■■2InreBulIey'sEstate,llJur.(N.S.)  &  J.  185,  194;  Chance  v.  Chance,  IG 

847.  Beav.  572. 

SKjiight  V.  Knight,  2  S.  &  St.  490.        eDeichmau  v.  Arndt,  49  N.  J.  Eq. 

*  Stretch  v.  Watkins.  1  Mad.  253.  lOG,  22  Atl.  R.  799. 

6  Saunders  v.  Vautier,  Cr.  Si  Ph. 


§  873.]  VESTIXG    OF   FUTURE    DEVISES    AND    LEGACIES.  1327 

death  under  majority,  leaving  a  child,  the  child  takes  his  share.^ 
And  a  gift  is  not  contingent  merely  because  it  may  be  taken  in 
land  or  in  monev,  as  the  beneficiary  may  elect.  This  occurs 
"when  land  is  devised  in  trust  to  apply  the  income  to  the  sup- 
port of  minors  during  minority,  with  a  power  of  sale  in  the 
trustee,  and  if  not  sold  to  partition  among  the  beneficiaries 
when  they  reach  a  specified  age.  The  power  to  elect  to  take 
either  land  or  money  is  for  the  benefit  of  the  legatee,  and,  the 
gift  being  vested,  the  failure  of  a  beneficiary  to  elect  because 
he  dies  in  his  minority  does  not  devest  it  and  his  heirs  may 
claim  it.- 

§  873.  The  vesting  of  pecuniary  legacies,  and  particularly 
of  those  charged  upon  the  rents  or  proceeds  of  land. —  The 
vesting  of  pecuniary  legacies  is,  to  a  large  extent,  regulated  by 
the  same  principles  which  control  the  vesting  of  lands  devised, 
except  so  far  as  the  law  of  legacies  has  been  modified  by  being 
subject  to  certain  principles  of  the  Roman  civil  law,  by  reason 
of  the  early  jurisdiction  over  legacies  exercised  by  the  English 
ecclesiastical  courts  concurrently  with  courts  of  equity.  A 
money  legacy  given  simply  to  a  person  who  is  in  esse  at  the 
death  of  the  testator,  and  without  any  express  direction  post- 
poning the  vesting,  is  a  vested  legacy  prima  facie.  Thus,  a 
direction  to  pa}''  the  sum  of  $3,000  out  of  the  estate  if  there 
should  be  anything  remaining  after  the  death  of  a  life  tenant;' 
or  a  legacy  "  to  J."  when  he  shall  satisfy  the  executor  that  he 
is  worth  a  sum  specified;*  or  to  children  at  a  future  date  in 
equal  shares,^  is  a  vested  legacy,  and  the  words  of  postpone- 
ment relate  only  to  the  payment  and  not  to  the  vesting. 

In  the  latter  part  of  the  seventeenth  century  the  Englisli 
court  of  chancery  determined,  as  a  positive  principle  of  equity, 
that  all  legacies  which  are  charged  upon  the  rents  or  profits 
of  land,  or  which  are  to  be  paid  out  of  the  proceeds  of  land 
which  liavc  been  directed  to  be  sold,  whether  the  legacies  Avero 
in  terms  vested  or  contingimt,  if  their  payment  was  pt)st[K)ned 
to  a  date  alter  the  death  of  tlie  testator,  would  lapse  in  case  of 

iRakor  v.  MfI.f;o<l,  79  Wis.  531.  48  aChafoe  v.  Maker.  17  11.  L  7:i9,  21 
N.  W.  \L  Crj7.    Sfjo  alwj  ante,  §  307.        Atl.  R  773. 

2  Fuller  V.  Winthrop.  3  Allen  « Schwartz's  Appoal,  1H»  I'a.  St.  337, 
(Ma.S8.),  51,  C3;  Curling  v.  May,  3  Atlc     13  Atl.  K.  2l;J. 

255.  HJroshy  v.  Crosby,  01  N.  11  77,  5 

Atl.  K.  'JU7. 


132S  LAW   OF  WILLS.  [§  873. 

the  death  of  the  legatee  before  the  arrival  of  the  day  of  pay- 
ment. This  rule  was  adopted  to  favor  the  heir,  who  might 
take  the  land  by  descent,  and  was  in  direct  opposition  to  the 
rule  api^licable  to  legacies  payable  out  of  personal  property.^ 
The  modern  rule  is  otherwise.  If,  from  the  language  of  the 
Avill,  it  is  clear  that  the  testator  intended  that  the  legacy  which 
is  charged  upon  the  land  should  vest  at  his  death,  the  postpone- 
ment of  the  payment  alone  w^ill  not  prevent  the  personal  rep- 
resentative of  a  deceased  legatee  from  receiving  it  in  case  the 
legatee  dies  before  payment,  I^o  reason  exists,  either  in  law 
or  in  morals,  why  the  presumption  in  favor  of  vested  estates 
shall  not  apply  to  legacies  w^hich  are  payable  in  the  future  out 
of  the  rent  of  land  as  well  as  to  those  w^hich  are  to  be  paid  by  the 
executor  out  of  the  personalty.  So  if  the  postponement  of  the 
payment  of  the  legacy,  which  is  a  charge  upon  land,  appears 
from  the  will  to  have  been  the  result  of  a  desire  upon  the  part 
of  the  testator  to  make  the  payment  of  the  legacy  more  con- 
venient to  the  heir  who  takes  the  land,  or  to  the  devisee  of  the 
land,  the  presumption  of  vesting  is  strengthened,  and  if  the 
legatee  shall  die  before  the  date  of  payment  arrives  the  legacy 
must  be  paid  to  his  personal  representatives.^ 

But  the  mere  fact  alone  that  the  payment  of  a  legacy,  which 
is  a  charge  upon  the  rents  or  proceeds  of  land,  is  postponed 
for  the  convenience  of  the  estate,  will  not,  where  the  legacy  is 
expressly  contingent  upon  the  survival  of  the  legatee,  render 
it  vested.  An  example  of  this  would  be  a  legacy  to  A.,  B. 
and  C.  as  individuals,  or  the  survivors  or  to  a  class  or  the 
survivors,  to  be  paid  oy  the  sale  of  land  after  the  widow  shall 
have  enjoyed  the  rents  and  profits  during  her  life.'  Some  of 
the  English  cases  have  laid  down  another  distinction,  which, 
though  not  recognized  in  America,  deserves  mention.  These 
authorities  hold  that  if  the  payment  shall  be  postponed  with 

iDuke  of  Chandos  v.  Talbot,  2  P.  Eq.  278;  Loder  v.  Hatfield,  71  N.  Y. 

W.  601,  610;  Poulet  V.  Poulet,  1  Vern.  92,   99;   Marsh  v.  Wheeler,   2   Edw. 

204;  Prowse  v.  Abingdon,  1  Atk.  482.  (N.  Y.)  163:  Pond  v.  Allen,  15  R.  I. 

And  see  also  cases  cited  ante,  note  3,  171,  178,  2  Atl.  R.  302;  Rogers  v.  Rog- 

page  442.  ers,  11  R.  I.  38,  73-76;   Doe  v.  Con- 

2  Eldridge  v.  Eldridge,  9  Cush.  (63  sidine  (73  U.  S.,  1867),  6  Wall.  458. 

Mass.,  1851),  519;  Fuller  v.  Winthrop,  3  Goodman  v.  Drury,  21  L.  J.  Ch. 

3  Allen  (Mass.),  51;  Collier's  Will,  40  680. 
Mo.  287;   Herbert  v.  Post,  26  N.  J. 


§  874.]  TESTING    OF    FCTUKE    DEVISES    AND    LEGACIES.  132D 

reference  to  any  circumstance  which  is  personal  to  the  legatee, 
as  his  attainment  of  majority,  or  his  marriage,  or  his  entering 
upon  the  practice  of  a  profession,  the  legacy  is  not  vested  and 
lapses  on  his  death  prior  to  payment.^  The  fact  that  the  tes- 
tator has  given  the  legacy  over  to  another  upon  the  death  of 
the  legatee  before  payment  raises  a  very  strong  and  almost  a 
conclusive  presumption  that  it  is  a  vested  legacy,  and  that  it  is 
not  to  be  absorbed  into  the  land  for  the  benefit  of  the  devisee. 

§  874.  The  definition  and  classification  of  executory  de- 
vises.—  An  executory  devise  is  a  limitation  in  a  will  of  a  future 
contingent  interest  or  estate  in  land,  the  character  of  which  is 
inconsistent  with  the  rules  of  the  common  law  reo-ulatin^j:  future 
estates,  and  consequently  which  cannot  take  effect  as  a  con- 
tingent remainder.^  A  devise  of  a  future  estate  in  land  which 
can  take  effect  as  a  contingent  remainder  at  common  law,  i.  e., 
where  the  devise  does  not  depart  from  the  rules  of  law  govern- 
ing the  limitation  of  contingent  remainders,  is  a  contingent  re- 
mainder and  not  an  executory  devise.^ 

Executory  devises  have  been  -subdivided  into  two  classes. 
The  first  class  includes  those  by  which  the  testator  first  devises 
the  fee  of  an  estate,  but  provides  that,  upon  the  happening  of 
some  contingent  event,  this  devise  of  the  fee  shall  be  abridged 
or  defeated,  and  that  the  fee  on  that  contingency  shall  vest  in 
another.  The  latter  estate  is  an  executory  devise.''  This  class 
of  executory  devises  is  very  numerous.  It  includes  all  limita- 
tions of  estates  coming  after  the  definite  failure  of  the  issue  of 
a  devisee  to  whom  the  fee  is  given,  with  a  proviso  that  it  is 
then  to  go  to  another  person,  or  to  a  class  of  persons,  on  his 
death  without  issue,  simply,  or  under  majority.^    Under  such 

1  Gawler  v.   Sanderwicke,   1   Bro.  to  depend  on  an  estate  of  freehold. 

C  C.  IOj,  n.,  2  Cox,  15;  Harrison  v.  wliich  was  capable  of  supporting  a 

Naylor,  3  Bro.  C.  C.  108,  2  Cox,  Ch.  R.  remainder,  it  should  never  be  con- 

247;  Phipps  v.  Lord  Mulgrave,  3  Ves.  strued  an   executory   devise,  but  a 

613.  contingent    remainder."     By    Lord 

24  Kent,  Com.,  p.  258;  1  Jarman  Kenyon,  in  Doe  v.  Morgan,  3  T.  IL 

on  Wills,  p.  804.     And  see  also  jjost,  703. 

g  882.  ■*  For  an  explanation  of  the  origin 

'Carwardine     v.     Carwardine,     1  of  executory  devises  and  the  relation 

Eden,  27;  Purefoy  v.  Rogers,  2  Lev.  of  the  rule  of  perpetuities  to  them, 

39;    Reeve  v.   Long,   Carthew,   310;  see  post,  ^  882. 

Goodright  v.  Cornish,  4   Mod.   458.  ^See  cases  cited  ant€,%%  840-851. 
"Where  a  cfjutingency  was  limited 
84 


1330  LAW   OF   WILLS.  [§  875. 

circumstances  the  executory  devise  takes  effect  in  substitution 
for  and  in  derogation  of  the  preceding  limitation  in  fee  and  de- 
feats it,  thus  differing  wholly  from  a  common-law  contingent 
remainder,  though,  like  a  remainder,  the  executory  devise  is 
preceded  by  a  freehold.  In  all  these  cases  the  executory  de- 
vise of  the  fee  vests  absolutely  upon  the  happening  of  an  event 
which  terminates  prematurely  the  interest  which  preceded  it. 
For  this  reason,  as  elsewhere  explained,  the  ulterior  limitation 
cannot  be  a  valid  remainder,  for  no  limitation  is  valid  as  a  re- 
mainder which,  by  its  terms,  vests  upon  the  happening  of  any 
event  which  abridges,  destroys  or  defeats  the  prior  estate.^ 

The  second  class  of  executory  devises  includes  those  in  which 
the  fee  is  not  disposed  of  immediately  at  the  death  of  the  tes- 
tator, but  the  disposition  which  is  made  of  the  fee  must  of 
necessity  vest  in  the  future,  if  it  is  to  vest  at  all.  The  vesting 
of  the  executory  devise  may  be  postponed  either  because  the 
objects  of  it  cannot  come  in  existence  until  a  future  and  uncer- 
tain date,  as,  for  example,  a  devise  to  the  children  of  a  person 
who  is  unmarried  at  the  death  of  the  testator,  or  who,  if  mar- 
ried, has  then  no  children.  In  such  a  case  the  fee  vests  in  the 
heirs  of  the  testator,  or  in  his  residuary  devisee,  subject  to  be 
defeated  by  the  birth  of  children  to  the  person,  who  will  take 
as  a  class  an  executory  devise.  Other  examples  of  executory 
devises  of  the  second  class  are  future  devises  of  the  fee  to  the 
heirs  of  the  body  of  A.,  who  is  alive  at  the  death  of  the  testa- 
tor, but  to  wiiom  a  life  estate  is  not  given,-  and  a  devise  to  a 
person  to  be  delivered  to  him  when  he  shall  marry  or  attain 
the  age  of  twenty-one  years,  or  to  vest  in  him  at  a  specified 
date  after  the  death  of  the  testator. 

§  875.  Executory  devises  not  affected  l)y  the  acts  of  the 
hofder  of  the  precedent  estate. —  We  have  elsewhere  fully  ex- 
plained that  it  was  the  rule  at  the  common  law  that  if  the  par- 
ticular estate  which  preceded  a  contingent  remainder  came  to 
an  end  before  the  contingent  remainder  became  vested,  the  lat- 
ter was  destroyed.'  Hence,  if  the  life  tenant  should  by  act  of 
his  forfeit  the  estate  hefore  the  contingent  remainder  became 

1  See  ante,  %%  854-857.  3  gee  §  854    This  rule  has  been  re- 

2Sno\ve  V.  Cutler,  1  Lev.  135;  Doe  pealed  in  England  and  in  some  states 

V.  Carleton,  1  Wils.  225;    Harris  v.  of  the  American  Union.   The  English 

Barnes,  4  Burr.  2157.  statute  is  8  and  9  Vict,  ch.  106,  §  8. 


§  8Y6.]  VESTING    OF    FUTURE    DEVISES    AXD    LEGACIES.  1331 

vested,  or  if  at  the  death  of  the  testator  the  life  tenant  was  dead 
or  was  incompetent  to  take  the  estate,  the  contingent  remainder 
■would  never  take  effect  at  all,  for  it  must  either  vest  during  the 
continuance  of  the  life  estate  or  immediately  at  its  termination.^ 
The  rule  applicable  to  executory  devises  is  the  direct  opposite 
of  this.  Xo  act  of  the  tenant  of  the  preceding  estate  can  pos- 
sibly affect  the  validity  of  the  executory  devise.-  Thus,  for 
example,  where  the  fee  is  given  in  the  first  instance  to  A.,  but 
?y*  he  shall  die  without  issue  living  at  his  death,  then  to  the  chil- 
dren of  B.  living  at  A.'s  death,  no  action  on  the  part  of  A.  can 
defeat  the  devise  to  the  children  of  B.,  which  vested  in  the  lat- 
ter who  are  alive  at  the  death  of  A.'  On  the  other  hand,  if  the 
first  devise  is  to  A.  and  his  hei?'s  absolutely,  an  ulterior  devise  of 
what  A.  may  not  use  on  his  death  simply,  not  coupled  with  any 
other  contingency,  as  death  under  age  or  without  issue,  is  void, 
and  A,  may  transfer  the  fee.  The  limitation  to  the  children  of 
B.  is  not  a  valid  executory  devise,  but  an  ineffecLaal  attempt  to 
create  a  devise  of  a  fee  after  it  has  been  given  to  A.  in  express 
terms.*  And  a  devise  to  the  children  of  A.  after  the  death  of 
B.,  in  case  he  shall  die  intestate  and  without  issue,  is  not  a  valid 
executory  devise,  as  the  limitation  over  may  be  defeated  by  B.'s 
power  of  disposing  of  it  by  will.' 

§  8T6.  The  effect  of  the  failure  of  an  executory  devise. — 
Under  circumstances  where  a  conditional  or  determinable  fee  ^ 
is  devised  to  A.,  and  this  is  followed  by  an  executory  devise  of 
the  fee  in  the  nature  of  a  conditional  limitation  to  a  person,  or 
to  a  class  of  persons  who  are  not  in  existence  and  wlio  never 
come  into  being,  so  that  the  executory  devise  docs  not  take 
effect,  the  question  arises  whether  the  determinable  or  con- 
ditional fee  becomes  absolute,  or  whether  the  fee  is  cut  down 
and  the  testator  is  to  be  deemed  intestate  as  to  that  part  of  his 
estate.  An  example  of  such  a  disposition  would  be  a  devise  to 
A.  and  his  heirs,  but  if  at  A.'s  death  there  should  bo  any  living 
children  of  B.  then  to  them  in  fee,  and  it  hapjxms  that  B.  dies 
in  the  life-time  of  A.  leavlmj  no  child rm.  The  presumption 
then  is  that  A.,  the  first  devisee,  is  to  take  an  absolute  fee  simple 

1  Soo  post,  %  881.  »  Fisher  v.  Wester,  25  AtL  R.  1009, 

2IV1IS  V.  r.rown.  Cro.  Jac,  TjOO.  I'.l  I'ji.  St.  0."). 

»  Soo  ante,  S  8  ir>.  « Sec  ^  815. 
<Seean<c,  g  689. 


1332  LAW   OF  WILLS.  [§  876. 

as  there  are  no  cliiklren  of  B.  to  take  the  fee.  The  testator 
evidently  meant  that  either  A.  should  have  the  fee  simple  abso- 
lutely, or  B.'s  children  should  have  it,  but  no  one  else.  He 
meant  to  give  it  away  from  the  heir.  It  would  therefore  be 
contrar}^  to  his  intention,  in  case  the  executory  devisees  cannot 
take,  to  deprive  A.  of  it  and  permit  the  testator  to  die  intestate, 
where  he  has  expressly  provided  that  A.  is  to  take  it  unless  B.'s 
children  survive  A. 

On  the  other  hand,  where  the  event  which  is  to  defeat  the  pri- 
mary devise  of  the  fee  is  not  the  birth  and  survival  of  a  class  of 
executory  devisees,  but  some  event  personal  to  the  devisee  him- 
self, as  his  death  unmarried,  or  in  the  life  of  another,  or  his 
death  without  leaving  issue,  the  fee  is  defeated  although,  for 
any  reason,  the  executory  devisees  cannot  take.  These  quali- 
fications annexed  to  the  fee  are  ^w«s{-conditions  subsequent, 
and  if  they  are  not  performed  the  fee  conditional  is  defeated, 
though,  on  account  of  the  non-existence  or  the  incapacity  of 
the  executor}^  devisees,  the  testator  may  prove  to  be  intestate 
as  to  the  fee.  The  distinction  between  the  two  classes  of  cases 
seems  to  be  that  in  the  latter  class  the  non-occurrence  of  the 
contingent  event  is  intended  to  defeat  the  precedent  fee  in  any 
case,  whether  the  executory  devise  following  it  shall  ever  vest 
or  not.  But  in  the  former  class  it  is  the  giving  over  of  the 
fee  to  another  which  defeats  the  prior  devise  of  the  fee,  and  if 
that  fails  to  go  into  effect  the  testator  intends  it  to  remain  with 
him  to  whom  he  has  first  given  it.^ 

So,  also,  where  the  testator  bequeaths  a  legacy  in  language 
which  gives  an  absolute  interest  in  the  legatee,  with  a  limita- 
tion over  to  another  legatee  upon  a  specified  contingency,  and 
the  contingency  does  not  happen,  the  legacy  is  absolutely 
vested.^  Thus,  where  money  is  given  absolutely  to  A.,  and 
upon  his  death  leaving  children  then  to  such  children,  or  what 
remains  to  such  children,  and  A.  leaves  no  children,  his  inter- 
est goes  to  his  heirs  and  not  to  the  heirs  of  the  testator  or  to 
the  executor,  or  A.  may  devise  it.' 

1  See  on  this  point  Doe  d.  Blomfield  for  life,  and  the  remainder  to  A.'s 
V.  Eyre,  5  C.  B.  713.  daughter,  but  if  the  latter  should  die 

2  Erickson  v.  Garden,  5  DeL  Ch.  unmarried  and  without  children, 
323;  Taylor  v.  Langford,  3  Ves.  119.  then  to  B.,  and   B.  died  before  the 

3  Where  a  legacy  was  given  to  A.  testator,  and  A.'s  daughter  died  with- 


§  877.]  VESTING    OF    FUTURE    DEVISES   AND    LEGACIES.  1333 

§  877.  The  transfer  of  future  vested  estates. —  By  the  early 
common  law  a  vested  remainder  would  pass  only  by  grant  With- 
out livery  of  seizin.^  In  more  recent  times  a  vested  remainder 
may  be  transferred  by  the  employment  of  a  deed  of  bargain 
and  sale,  or  of  some  similar  conveyance  which  is  operative 
under  the  statute  of  uses  or  under  a  similar  local  statute.  A 
devisee  of  a  future  vested  interest  may  incumber  it  in  any  way 
during  the  particular  estate.  If  it  is  personal  property  he  may 
give  a  chattel  mortgage  upon  it.^  And  the  interest  of  the  remain- 
derman will  be  subject  to  levy  and  sale  under  execution  during 
the  particular  estate.^  A  vested  remainder  or  any  vested  future 
interest  in  land  which  consists  of  the  fee,  on  the  death  of  the 
remainderman  or  devisee  during  the  life  of  the  particular  ten- 
ant descends  to  his  heirs;  and  upon  the  death  of  the  particular 
tenant  the  heirs  will  enter  in  possession,  provided  the  remainder 
is  not  defeasible  by  the  death  of  the  remainderman  before  the 
termination  of  the  particular  estate.*  So,  too,  a  legacy  which 
vests  at  the  death  of  the  testator,  though  its  payment  has  been 
postponed,  should  be  paid  to  the  personal  representative  of  the 
legatee  upon  the  death  of  the  latter  before  actual  payment  takes 
place.'  Thus,  where  the  testator  has  directed  that  legacies, 
which  are  given  in  language  which  creates  vested  interests, 
shall  be  paid  at  the  marriage  or  at  the  majority  of  the  legatee,® 

out  ever  having  a  child,  the  court  '  Shipp  v.  Gibbs,  75  Md.  205,  88  Ga. 

held  the  legacy  to  the  daughter  of  184. 

A.  was  absolute    and  went  to   her  <  Garrison  v.  Hill,  28  Atl.  R.  1062, 

next  of    kin.     O'Malioney    v.    Bur-  79  Md.  5 ;  Van  Axte  v.  Fisher,  4  N.  Y. 

dette,  L.  R.  7  H.  L.  :)88,  407.  S.  173.  51  Hun,  640.  117  N.  Y.  401,  22 

iThe  grant,  it  may  be  mentioned  N.  E.  R.  943;  In  re  Tompkins'  Estate, 

in  passing,  was  a  common-law  con-  49  N.  E.  R.  135,  154  N.  Y.  634;   In  re 

veyance,  employed  to  convey  incor-  Eckert's  Estate,  157  Pa.  St.  585,  27 

porealhereditamcnts  which  were  not  Atl.  R.  781;  TinduU  v.  Miller.  41  N. 

of  a  tangible  nature,  and  whicli  for  E.  R.  535.  143  111.  .337;  Nelson  v.  Rus- 

that  re:ison  could  not  be  conveyed  by  sell,  135  N.  Y.  137.  31  N.  E.  R.  lOOM; 

feoffment  and  livery  of  seizin,  which  Tliomae  v.  Thomae  (N.  J.),  18  Atl.  R 

■were  always  employed  in  the  case  of  35.5. 

lanrls,  the  possession  of  which  was  *In  re  Murpliy,  144  N.  Y.  557,  30  N. 

vested.  E.  R.  691;  Hills  v.  Barnard,  152  Mass. 

-Swett  V.  Thompson,  149  Mass.  .302,  67,  25  N.  E.  R.  96;  Garrison  v.  Hill,  79 

21  N.  E.  R  382;  Dimmick  v.  Butti-r-  M.l.  .5,  2H  AtL  R.  IU62. 

Bon,  142  N.  Y.  322.  37  N.  E.  R.  109;  «g«69. 
Heilman  v.  H.>ilman,  129  In. 1.  .59;  4 
Kent,  Com.,  p.  19.5. 


1334  LAW  OF  WILLS.  [§  878. 

or  shall  be  paid  after  the  death  of  the  widow  of  the  testator,^ 
or  at  some  other  future  period,  and  the  legatee  dies  before  the 
date  of  payment  arrives,  the  payment  should  be  made  to  his 
administrator  if  he  has  died  intestate,^  or  to  his  executor  in  case 
he  has  made  a  will.^ 

§878.  The  acceleration  of  future  estates. —  The  rule  was 
formulated  in  an  early  case  in  England  that  if  land  shall  be  de- 
vised to  A.  for  his  life,  remainder  to  B.  in  fee  simple,  and  A., 
though  he  is  living,  is  a  monk  at  the  death  of  the  testator,  the 
life  estate  to  him  is  void  because  he  is  civiliter  mortmts  by  rea- 
son of  his  being  a  monk.  Upon  the  death  of  the  testator  the 
remainder  in  fee  will  go  at  once  to  B.*  In  other  words,  the 
enjoyment  of  the  possession  of  the  future  estate  will  be  accel- 
erated when  from  any  reason  the  preceding  estate  fails.  The 
principle  of  the  acceleration  of  future  and  expectant  estates  is 
well  established. 

So  where  there  are  two  or  more  limitations  by  will,  whetlier 
of  real  or  of  personal  estate,^  to  several  persons  absolutely,  to 
be  enjoyed  by  each  of  them  successively  in  point  of  time,  and 
one  or  more  of  the  earlier  gifts  fail,  either  because  of  the  death 
of  a  devisee,  by  reason  of  which  a  lapse  occurs,^  or  because  of 

1  §  866.  common  law,  exclusively  to  Tested 

2  Budd  V.  Haines,  52  N.  J.  Eq.  488,  remainders.  If  the  particular  estate 
29  AtL  R.  170.  upon  which  a  contingent  remainder 

3  Conant  v.  Bassett,  52  N.  J.  Eq.  12,  is  expectant  comes  to  an  end  before 
28  Atl.  R.  1047;  McCarty  v.  Fish,  87  the  contingent  remainder  becomes  a 
Mich.  48,  49  N.  W.  R.  513.  See  also  vested  remainder,  the  latter  is  for- 
Smith  V.  West,  103  111.  332;  Rhodes  ever  gone;  for.  at  common  law,  no 
V.  Shaw  (N.  J.),  11  AtL  R.  116.  A  re-  freehold  estate  can  be  limited  by  liv- 
mainder  in  the  children  of  B.  as  a  ery  of  seizin  to  begin  in  futuro,  and 
class  and  their  heirs,  coming  after  a  every  contingent  remainder  must 
life  estate  in  their  parent,  is  a  vested  have  a  vested  particular  estate  to  su]i- 
remainder,  which  is  devisable  and  port  it.  Of  course,  these  rules  do  not 
assignable  durmg  the  life  of  the  par-  appl}-  to  executory  devises  or  future 
ent,  though  possession  has  been  post-  trust  estates. 

poned  until  after  .several  life  estates.  ^  Lainson  v.  Lainson,  23  L.  J.  Ch. 

Loring  v,  Carnes,  148  Mass.  223, 19  N.  170;  Jull  v.  Jacobs,  L.  R.  3  Ch.  Div. 

E.  R.  343.   See  also  Chapman  v.  Chap-  703;  In  re  Lowman,  (1895)  2  Ch.  348, 

man,  90  Va.  409.  18  S.  E.  R.  913.  12  Reports,  362. 

^Perkins,   567;   Shep.   Touch.   435,  <^ Robinson  v.  Female  Orphan  Asy- 

451;  2  Black.  Com.,  p.  122.     The  rule  lum,  8  S.  Ct.  327,  123  U.  S.  702;  Simp- 

of  the  acceleration  of  remainders  is  son  v.  Cherry,  34  S.  C.  1,  68,  12  S.  E. 

applicable,  under  the  principles  of  the  R.  886. 


§  878.]  VESTING    OF    FUTURE   DEVISES    AND    LEGACIES.  1335 

the  incapacity  of  a  life  tenant  to  take,^  or  because  the  prior 
devisee  refuses  to  accept  the  benefit,'^  or  where  the  prior  gift  is 
void  because  it  is  clearly  in  contravention  of  some  recognized 
rule  or  principle  of  law,  common  or  statute,  as,  for  example, 
where  it  is  in  violation  of  the  rule  of  perpetuities,^  or  because 
the  prior  interest  given  has  been  revoked  by  the  testator,*  the 
next  estate  following  will  be  accelerated,  and  it  will  vest  in 
possession  at  once,  but  it  will  not  be  otherwise  affected.  And 
if  one  or  more  of  those  who  would  have  taken  the  earlier  es- 
tates shall  die  in  the  life-time  of  the  testator,  the  next  in  order 
will  take  absolutely,  though  he  might  never  have  taken  anything 
in  the  event  of  the  prior  devisees  having  survived  the  testator.* 

Where  land  is  devised  in  trust,  whether  to  executors  or  trust- 
ees, until  A.  attain  majority,  to  apply  the  rents  and  income 
which  may  accrue  until  then  to  particular  purposes  designated, 
with  a  devise  of  the  land  to  A.  when  he  shall  attain  twenty-one 
years  of  age,  and  a  devise  over  to  B.  if  A.  shall  die  under  his 
majority,  and  A.  happens  to  die  before  he  has  attained  his  ma- 
jority, the  question  is,  does  A.'s  death  accelerate  the  devise 
over  to  B.,  or  do  the  trustees  continue  to  hold  and  to  accumu- 
late income  for  the  purposes  of  the  will  until  the  date  when  A. 
would  have  become  of  the  age  of  twenty-one  years  had  he 
survived  ?  If  the  income  is  to  be  paid  to  A.  during  his  minor- 
ity, the  principal  to  vest  in  him  when  he  becomes  twenty-one, 
the  gift  over  to  B.  will  of  course  take  effect  at  once  on  the 
death  of  A. 

But  on  the  other  hand,  where  the  purpose  of  the  accumula- 
tion of  income  from  the  trust  was  the  payment  of  debts  and 
legacies  to  other  persons  when  the  legatee.  A.,  should  have  at- 
tained his  majority,  it  will  be  conclusively  presumed  that  there 
is  to  be  no  acceleration  of  the  gift  over  to  B.  The  primary  in- 
tention of  the  testator  is  that  this  income  is  to  be  devoted  to 
pay  debts  and  legacies,  and  having  estimated  (whether  cor- 

1  Jull  V.  Jacobs,  L.  R.  3  Ch.  D.  703,  139,  33  Atl.  R  788;  Fosdick  v.  Fos- 
where  he  was  an  attesting  witness,     di(;k,  C  Allen  (Mass.),  41,  43. 

and  for  that  reason  was  incapable  of  *  Lainson  v.  Lainson,  18  Beav.  1,  6 

taking  under  the  will  De  Gex,  Mac.  &  G.  7r)4. 

2  In  re  White's  Estate,  174  Pa.  St.  »In  re  Lowinan,  (1895)  2  Ch.  348,13 
672,  38  W.  N.  C.  136,  34  Atl.  It.  321;  Reports.  302;  Craven  v.  Brady,  L.  R. 
Everett  v.  McCroskery,  92  Iowa.  333.  4  Eq.  209,  4  Cb,  App.  29G. 

'Hamlin  v.  Mansfield,  88  Ma  131, 


1336  LAW  OF  WILLS.  [§  S78. 

rectly  or  not  it  is  immaterial)  that  the  income  which  may 
arise  during  the  minority  of  A.  would  be  sufficient,  and  havin<^ 
thus  made  the  income  a  primary  fund  for  the  purpose,  it  must 
remain  so  irrespective  of  other  events.  To  permit  an  accel- 
eration so  that  income  shall  go  to  B.,  or  to  recognize  a  resulting 
trust  for  the  next  of  kin  of  the  testator,  will  be  contrary  to  the 
clear  intention  of  the  testator.^ 

1  Boraston's  Case,  3  Co.  19a,  21a,-  his  majority,  with  a  gift  of  the  in- 

Lomax  v.  Holmedon,  3  P.  W.  176.  come  during  his    minority  to  pay 

And  the  rule  is  applied  to  the  case  debts  or  legacies  to  other  persons, 

of  a  devise  to  A.  in  fee  simple,  he  to  Carter  v.  Church,  1  Ch.  Cas.  113. 
receive  possession  when  he  attains 


CHAPTEE  XLIV. 


THE  LAW  OF  PERPETUITIES  AND  REMOTENESS  OF  VESTING. 


879.  The  definition  of  a  perpetuity. 

880.  The  law  of  perpetuities  —  Gen- 

eral considerations. 

881.  The  rule  of  remoteness  in  the 

vesting  of  contingent  re- 
mainders. 

882.  The  origin  of  executory  de- 

vises and  of  the  modern  rule 
of  perpetuity. 

883.  The  possibility  of  the  happen- 

ing of  the  future  event. 
884  The  validity  of  future  limita- 
tions to  unborn  persons. 

885.  The  rule  of  remoteness  of  vest- 

ing and  of  perpetuities  in 
relation  to  contingent  gifts 
to  grandchildren  as  a  class. 

886.  The  invalidity  of  the  suspen- 

sion of  the  power  of  aliena- 
tion for  a  period  which  is 
indefinite  or  which  is  not 
measured  by  lives. 

887.  The  period  is  to  begin  at  the 

death  of  the  testator. 

888.  Vested  estates  are  not  within 

the  rule  of  perpetuities. 

889.  The  effect  of  a  power  of  sale 

to  prevent  the  operation  of 
the  rule  of  perpetuities. 

890.  Tlie  rule  of  perpetuities  in  re- 

lation to  charitable  gifts. 

891.  Devises    lor    cliaritablo    pur- 


r.  poses  may  offend  the  rule 
when  made  to  non-existent 
corporations. 
§  892.  Devise  over  on  the  termination 
of  a  charity — When  void  for 
remoteness. 

893.  The  suspension  of  the  power 

of  alienation  during  minor- 
ities. 

894.  The    separation    of    gifts    to 

classes  —  When    not    per- 
mitted. 

895.  The    circumstances    under 

which  class  gifts  may  be 
separated. 

896.  Tlie  effect  of  the  invalidity  of 

a  devise  on  the  next  expect- 
ant limitation  following  it. 

897.  The  statutory  regulations  of 

the  rule  of  perpetuity  in  the 
United  States. 

898.  The    rule   of  perpetuities   in 

Connecticut. 

899.  Cases    illustrating    the    New 

York  rule  of  perpetuities. 

900.  The  statutory  rule  of  perpetu- 

ities in  Wisconsin. 

901.  The  suspension  of  alienation 

for  the  ])urpose  of  accumu- 
lating income. 

902.  The  validity  of  accumulations 

for  charity. 


§  870.  Tlio  (lofinition  of  a  perpetuity. —  Tt  may  be  of  some 
benefit  to  the  reader  ior  the  author  to  observe  at  tlie  outset  of 
this  chapter  tiiat  it  by  no  means  purports  to  contain  an  ex- 
haustive treatment  of  the  Jef^al  ruh's  and  princii)les  wiiich  con- 
<lemn  and  forl)id  tlie  creation  of  perpetuities  in  real  and  ])er- 
sonal  prop(;rty.  Tiiis  vast  and  very  intricate  subject  has  been 
considered  in  the  standard  works  of  Mr.  J.ewis  and  Mr.  Gray 


1338  LAW  OF   WILLS.  [§  879. 

with  admirable  system  and  method  which  it  were  presumptu- 
ous to  emulate,  and  v/ith  an  amplitude  of  learning  which  it  is 
impossible  to  excel.  But  inasmuch  as  the  authorities  in  ex- 
istence Avhich  discuss  this  subject  may  not  be  within  the  reach 
of  many  who  woukl  use  these  volumes,  and  for  the  further  rea- 
son that  the  subject  of  perpetuities  is  one  that  is  constantly 
coming  up  in  practice  in  connection  with  the  testamentary  dis- 
position of  property,  a  short  and  concise  discussion  of  it  is  abso- 
lutely indispensable. 

A  perpetuity  may  be  deiined  as  a  disposition  of  property, 
either  real  or  personal,  by  which  the  fee  or  absolute  interest  is 
so  limited  that  by  reason  thereof  the  vesting  of  the  fee  or  abso- 
lute interest  will  be  suspended,  and  will  not  take  place  for  a 
longer  period  than  during  the  lives  of  one  or  more  persons  who 
are  alive  when  the  disposition  is  made,  or  (if  it  is  in  a  will,  at 
the  death  of  the  testator)  twenty-one  years  thereafter,  and  a 
fraction  of  another  year  in  addition  for  the  period  of  gesta- 
tion in  the  case  of  a  posthumous  child.^  Under  this  defini- 
tion, which  makes  the  answer  to  the  question  whether  a  lim- 
itation of  property  is  a  perpetuity  turn  altogether  upon  the 
suspension  of  the  vesting  of  the  fee  or  absolute  interest  in  it, 
rather  than  upon  the  suspension  of  the  power  of  alienation  of 
the  absolute  interest,  it  is  clear  that  the  giving  of  an  absolute 
vested  interest^  coupled  with  a  restriction  upon  the  power  to  con- 
vey or  incumber  it^  cannot  properly  be  called  a  perpetuity.  It 
does  not  follow  that  a  direction  to  the  effect  that  a  vested 
estate  shall  not  be  alienated  or  incumbered  is  invariably  valid. 
It  is  elsewhere  ^  explained  at  some  length  that  a  settlement  by 
will   of  property  under  which  a  living  person  is  given  an 

1  By  vesting  is  here  meant  the  vest-  a  perpetuity  exists,  we  must  know 
ing  of  the  title,  not  the  vesting  of  the  what  it  is,  and  for  this  we  must  re- 
possession. Blackstone,  in  2  Com.,  sort  to  a  delinition.  See  Ould  v. 
p.  174,thus  defines  a  perpetuity:  "The  Hospital,  9.j  U.  S.  812;  Perin  v.  Carey, 
settlement  of  an  instrument  which  24  How.  (U.  S.,  1862),  494;  McArthur 
will  go  in  the  succession  prescribed  v.  Scott,  113  U.  S.  382;  Bruce  v.  Nick- 
without  any  power  of  alienation.'"  erson,  141  Mass.  403;  Jones  v.  Haber- 
The  definitions  of  a  perpetuity  are  sham,  107  U.  S.  185  (1882);  De  Wolf 
exceedingly  numerous.  Nearly  every  v.  Lawson,  61  Wis.  469.  474  (1884); 
case  in  which  the  question  of  the  ex-  Waldo  v.  Cummings^  45  111.  421; 
istence  of  a  perpetuity  has  arisen,  of  Phillips  v.  Harrovver,  93  U.S.  92,  106. 
necessity  defines  it;  for  to  determine  "^Ante,  %%  522-525. 
whether  in  any  particular  instance 


§  880.]  PERPETUITIES    AND    REMOTENESS    OF   TESTING.  1339 

absolute  vested  estate  in  fee,  but  in  which  the  testator  has 
inserted  language  by  which  the  devisee  is  restricted  in  or 
prevented  from  selling  it  or  incumbering  it,  may  be  void  be- 
cause of  the  restriction  of  the  power  of  alienation  is  repug- 
nant to  the  giving  of  a  vested  estate  in  fee  simple.  Where 
this  view  is  held  it  is  not  material  that  the  restriction  on  the 
-alienation  is  to  endure  only  during  the  life  of  the  devisee, 
where  his  interest  is  given  absolutely,  whether  for  life  or  in  fee. 
The  fee  is  vested  in  a  living  person,  and  on  his  death  will  de- 
scend to  his  heirs.  While  in  the  case  of  a  true  perpetuity  the 
fee  is  limited  contingently,  usually  to  persons  not  in  heing,  and 
as  soon  as  it  vests  there  is  no  longer  a  perpetuity.  The  effect  in 
both  cases  may  be  and  often  is  identical.  The  active  com- 
merce in  land  may  be  as  effectually  restrained  in  one  way  as 
in  the  other.  But  the  distinction  between  these  cases  is  very 
clear.  It  is  also  of  some  practical  importance;  for,  if  it  be 
granted  that  the  sole  test  of  the  creation  of  a  perpetuity  is  the 
indefinite  suspension  of  the  power  of  alienation,  or  its  suspen- 
sion for  an  illegal  period,  it  follows  that  under  modern  rules 
having  their  origin  in  courts  of  equity,  by  which  future  and 
executory  contingent  interests  are  assignable,  no  perpetuity 
exists  or  can  exist  in  the  case  of  an  executory  devise  w^hich  is 
dependent  upon  a  contingent  event  other  than  the  coming  into 
being  of  unborn  devisees. 

§880.  The  law  of  perpetuities  —  General  considerations. 
The  subject  of  the  creation  of  invalid  limitations  of  property, 
designated  as  perpetuities,  by  which  the  exercise  of  the  power 
of  alienating  the  absolute  title  and  interest  in  property  is  tem- 
porarily destroyed  or  suspended,  is  one  that,  though  constantly 
occurring,  is  but  little  understood  except  by  those  persons  who 
have  made  a  special  study  of  it.  The  subject  is  generally  re- 
garded as  unattractive,  not  only  because  of  the  inherent  diffi- 
culty of  the  subject  itself,  but  also  on  account  of  the  somewhat 
aljstruse  and  incomplete  manner  in  which  it  has  been  treated 
by  some  of  the  text-writers. 

The  necessity  for  th(?  imposition  of  some  arbitrary  restriction 
upon  tlie  pow(!r  of  suspending  indefinitely  the  power  of  alien- 
ating the  fee;  in  real  propert}',  or  tin;  alisolute  interest  in  per- 
sonal property,  needs  no  argument.  A  soci.il  coriditidn  in 
which  it  would  be  legally  possibh;  to  prevent  f<»r  an  indelinito 


1340  LAW   OF    WILLS.  [§  SSI. 

time  the  free  and  active  conveyance  of  property  would  be  lam- 
entable and  intolerable.  All  progress  —  social,  commercial  and 
intellectual  —  would  be  retarded,  if  not  completely  terminated 
at  once.  For  it  is  only  when  men  enjoy  the  full  and  unlim- 
ited |)ower  of  readily  transferring  their  property,  and  of  chang- 
ing the  form  in  which  it  exists,  that  new  business  enterprises 
are  initiated  and  those  already  in  existence  are  carried  to  a 
successful  conclusion.  And  though  in  the  abstract  the  action 
of  a  testator  or  a  donor  in  imposing  such  restrictions  upon  the 
future  disposition  of  his  property  by  those  to  whom  it  is  given 
as  will  prevent  its  sale  and  the  wasting  of  the  proceeds  may 
be  commendable,  still  the  injury  caused  to  society  at  large  and 
to  public  interests  by  his  action  may  be  so  great  as  to  outweigh 
any  advantage  which  may  be  derived  from  the  preservation  of 
the  property  intact  in  the  hands  of  individuals.^ 

§  881.  The  rule  of  remoteness  in  the  vesting  of  contingent 
remainders. —  An  estate  in  fee,  when  it  is  limited  to  any  per- 
son by  deed  as  a  common-law  remainder,  must  vest  in  him: 
Jirst^  either  at  the  time  of  the  creation  of  the  particular  estate; 
second,  or  during  its  existence;  or  third,  eo  instante  on  its  ter- 
mination .^    This  principle  of  the  common  law  was  based  upon 

1 1  cannot  do  better  than  to  quote,  therefore,  that  when  increased  facili- 

in  this  connection,  the  forcible  Ian-  ties  were  given  to  the  alienation  of 

guage  of  Mr.  Jarman  from  his  mas-  property,  and  modes  of  disposition 

terly  work  on  Wills  (ch.  IX,  sec.  11,  unknown  to  the  common  law  arose 

p.  351,  vol.  1):  "That  free  and  active  from  the  introduction  of  springing 

circulation  of  property,  which  is  one  uses  and  executory  devises,  that  no 

of  the  springs  as  well  as  the  conse-  act  of  the  owner  of  the   preceding 

quences  of  oommerce,  would  be  ob-  estate  could  defeat,  it  was  necessary 

structed;  the  improvement  of  land  to    confine  t'ne   power    of  creating 

checked;    its    acquisition    rendered  these  interests  within  such  limits  as 

difficult:  the  capital  of  the  country  would  be  adequate  to  the  exigencies 

gradually  withdrawn    from    trade;  of    families,   without    transgressing 

and  the  incentives  to  exertion  in  the  bounds   prescribed  by  a  sound 

every  branch  of  industry  diminished,  public  policy.    This  was  effected,  not 

Indeed,  such  a  state  of  things  would  by  legislative  interference,  but  by 

be  utterlj^  inconsistent  with  national  the  courts  of  judicature,  who,  in  this 

prosperity;    and    these    restrictions  instance,    appear  to    have    trodden 

which  were  intended  by  the  donors  very  closely  on  the  line   which  di- 

to  guard  the  objects  of  their  bounty  vides  the  judicial  from  the  legisla- 

against  the  effects  of  their  own  im-  tive  function." 

providence,  or   originated   in   more  '^4  Kent,  Com.,  p.  241;   Plowden, 

exceptional  motives,  would  be  bane-  25,  28;  Co.  Lit.  49,  a,  b;  ante,  §  854. 
fill  to  aU.    It  was  soon  perceived, 


§  SSI.]  PERPETUITIES    AND    REMOTENESS    OF    VESTING.  1341 

the  necessity  which  existed  under  the  feudal  system  that  there 
should  always  be  a  tenant  of  the  freehold  who  might  be  called 
upon  to  perform  the  services  which  were  due  the  feudal  land- 
lord and  who  might  also  answer  as  a  defendant  in  ejectment. 
If  the  particular  estate  terminated  before  the  birth  of  the  per- 
son in  whom  the  remainder  which  was  continu'ent  vested,  the 
latter  was  forever  defeated.  There  could  be  no  intervenins; 
estate  or  interest  between  the  particular  estate  and  the  re- 
mainder, for  if  the  former  came  to  an  end  before  the  latter 
vested  in  title,  the  remainder  was  gone  forever,  because  a  free- 
hold could  not  be  created  by  a  common-law  conveyance  to 
commence  in  futuro} 

If  the  remainder  in  fee  vests  at  the  time  of  the  creation  of 
the  particular  estate  it  is  a  vested  remainder,-  and  the  rule  of 
the  remoteness  of  vesting  of  remainders  has  no  application,  for 
that  rule  applies  only  to  contingent  remainders.  Hence,  we 
must  here  consider  the  doctrine  of  remoteness  as  applied  to 
contingent  remainders  alone.  A  contingent  remainder  in  fee 
is  one  which  becomes  vested  as  to  its  title  either  upon  a  duhious 
and  uncertain  event,  the  happening  of  which  is  uncertain  and 
may  never  happen  at  all,  or  which  is  limited  to  a  duhious  and 
uncertain  person  or  class  of  persons.  If  the  contingent  re- 
mainder does  not  vest  either  during  the  particular  estate  or 
immediately  at  its  termination,  it  is  void  for  the  reason  above 
stated, 

1  "  First,"  says  Blackstone  (3  Com.,  eldest  son  in  tail,  and  A.  died  with- 

p.  178),  "they"  (contingent  remain-  out  issue  born,  but  leaving  his  wife 

ders)  "  may  be  limited  to  a  dubious  cnseint,  or  big  with  child,  and  after 

and  uncertain  person.     As  it'  A.  be  his  death    a    posthumous    son   was 

tenant  for  life,  with   remainder  to  born,  this  son   could   not  take  the 

B.'s  eldest  son  (then  unborn)  in  tail;  land  by  virtue  of  this  remainder;  for 

this  is  a  contingent  remainder,  for  it  the  particular  estate  determined  be- 

is  uncertain  whether  B.  will  have  a  fore  there  was  any  person  in  esse  in 

8on  or  not;  but  tlie  instant  that  a  son  whom  the  remainder  could  vest   But 

is  born,  the  remainder  is  no  longer  to  remedy  tliis  hardsliip  it  is  enacted 

contingent,  but   vested.     Though  if  by  statute  10  and  11  Wm.  III.,  c.  16, 

A.  had  died  Ijefore  the  contingency  that  posthumoiis  children  shall  be 

happened,   that   is.    l>efore   B.'s    son  capable   of  taking  in  remainder,  ia 

was  born,  tlie  remainder  would  liavo  the  same?  manner  as  if  tlicy  had  been 

been  absolutely  gone,  for  the  partic-  burn  in  their  father's  lif(;-time;  that 

ular  estate   was   determined   before  is.  the  remainder  is  allowed  to  vest 

the  remainder  could  v(;ht.     Nay,  by  in  truun  wiiile  yet  in   tluir  mother's 

the  strict  rule  of  law,  if  A.  was  tea-  womb.'' 

ant  for  life,  reiuaiuder  to  his  own  *.l«<t',  §  bCO. 


1342  LAW    OF    WILLS.  [§  881. 

Ill  consequence  of  this  principle  the  contingency  ujpon  which 
the  remainder  is  to  vest  must  he  a  common  jpossibility,  or  a  near 
j)ossil)ility .  The  remainder  must,  when  limited  to  a  person  not 
in  being  at  the  date  of  its  creation,  be  limited  to  some  one  that 
by  common  possibility  may  corns  into  being  during  the  particu- 
lar estate  or  when  it  terminates.  If  the  contingent  remainder 
be  limited  to  a  person  or  on  an  event  too  remote,  it  is  void 
ab  initio.  Thus,  if  an  estate  be  limited  to  A.  for  life,  remainder 
to  his  heirs,  the  remainder  is  good,  for  all  the  remaindermen 
must  come  into  being  during  A.'s  life,  which  is  the  measure  of 
the  particular  estate.^  So  if  an  estate  be  given  to  A.  for  life, 
remainder  to  the  heirs  of  B.  in  fee,  who  is  a  living  person,  and 
B.  dies  before  A.,  the  remainder  is  good,  for  it  vests  in  the  life 
of  A.  during  the  particular  estate.  The  onl}^  possibility  is  the 
death  of  B.  in  the  life  of  A.-  But  a  remainder  to  the  heirs  or 
to  the  children  of  B.,  if  at  the  creation  of  the  particular  estate 
there  is  no  such  ])erson  as  B.  in  existence,  is  void  as  too  remote, 
or  as  founded  upon  "a  possibility  upon  a  possibility."  For 
here  there  must  two  contingencies  happen  during  the  particu- 
lar estate.  First,  there  must  be  born  a  person  named  B. ;  and 
second,  he  must  die  during  the  particular  estate.  A  common 
illustration  of  this  rule  would  be  a  limitation  to  A,  for  life,  re- 
mainder to  his  children  for  life,  remainder  in  fee  to  their  chil- 
dren. Of  course  all  of  A.'s  children  would  be  born  to  him 
during  the  particular  estate,  i.  e.,  his  estate  for  life,  or  would 
be  en  ventre  sa  mere  at  the  date  of  its  termination.  But  that 
all  of  his  grandchildren  would  also  be  born  during  the  same 
period  is  extremely  unlikely,  for  it  is  in  the  highest  degree  prob- 
able that  A.  may  die  suddenly,  leaving  very  young  children 
who  arc  unmarried  or  leaving  his  wife  enseint.  This  was  the 
only  rule  at  the  early  law,  prior  to  the  creation  of  executory 
devises  and  contingent  uses,  by  which  the  suspension  of  the 
power  of  alienation  was  tested. 

And  another  rule  of  the  earlier  law  which  was  applicable  to 
contingent  remainders  rendered  unnecessary  any  other  rule  for 
the  prevention  of  a  perpetuity  in  their  creation.  For  contin- 
gent remainders  were  always  liable  to  be  defeated  by  destroy- 
ing or  terminating  the  particular  estate  before  the  contingency 

1  Ante,  §  857.  2  Co.  Litt,  p.  378;  2  Black.  Com.,  p.  170. 


§  882.] 


PEKPETUITIES    AND    REMOTENESS    OF   VESTING. 


134J 


happened  upon  which  they  were  to  vest.  Hence,  where  the 
life  estate  is  followed  by  various  remainders  in  fee,  all  of  which 
are  contingent,  the  life  tenant  may  destroy  all  of  them  not 
only  by  his  death  before  they  vest,  but  also  by  an  alienation 
by  feoffment,^  surrender  or  otherwise,  unless  there  shall  be  ap- 
pointed trustees  for  the  purpose  of  preserving  the  contingent 
remainders.- 

§  882.  The  origin  of  executory  devises  and  of  the  modern 
rule  of  perpetuities. —  As  soon  as  certain  estates  and  interests 
in  land  which  had  been  unknown  according  to  common-law 
rules  began  to  be  recognized  in  courts  of  equity,  the  necessity 
arose  for  the  creation  of  a  new  rule  to  guard  against  perpetu- 
ities. We  have  seen  that,  at  common  law,  a  contingent  re- 
mainder in  fee  cannot  be  created  to  vest  in  futuro  without  a 


i§854 

2  In  Cole  V.  Sewell,  4  Drew.  &  War. 
1.  the  court,  by  Lord  St.  Leonards, 
said:  "As  to  the  question  of  remote- 
ness, at  this  time  of  day  I  was  very 
much  surprised  to  hear  it  pressed, 
because  it  is  now  perfectly  settled 
that,  where  a  limitation  is  to  take 
effect  as  a  remainder,  remoteness  is 
out  of  the  question,  for  the  given 
limitation  is  either  a  vested  remain- 
der, and  then  it  matters  not  whether 
it  ever  vest  in  possession,  because 
the  previous  estate  may  subsist  for 
centuries  or  for  all  time;  or  it  isa  con- 
tingent remainder,  and  then  by  the 
rule  of  law,  unless  the  event  upon 
which  tlie  contingency  depends  hai>- 
pen  so  tliat  the  remainder  may  vest 
eo  itistanti  tlie  preceding  limitation 
determines,  it  can  never  take  effect 
at  all.  There  was  a  great  difliculty 
in  the  old  law,  because  the  rule  as  to 
j)erj)etuity,  which  is  a  comi)aratively 
niodcrn  rule  (I  mean  of  recent  intro- 
duction, wli(;n  speaking  of  tlie  laws 
of  this  country)  was  not  known,  so 
that  while  contingcint  remainders 
were  the  only  spcicnes  of  e.\<.'cutory 
estate  then  known,  and  uw's  and 
springing  and  shifting  limitations 
were  not  invented,  the  law  did  speak 


of  remoteness  and  mere  possibilities 
as  an  objection  to  a  remainder,  and 
endeavored  to  avoid  remote  possibili- 
ties; but  since  the  establishment  of 
the  rule  as  to  perpetuities,  tliis  has 
long  ceased,  and  no  question  now^ 
ever  arises  with  respect  to  remote- 
ness; for  if  the  limitation  is  to  take 
effect  as  a  springing,  shifting  or  sec- 
ondary use,  not  depending  on  an  es- 
tate tail,  and  if  it  is  so  limited  that 
it  may  go  beyond  a  life  or  lives  in 
being,  and  twenty-one  years  and  a 
few  months,  equal  to  gestation,  then 
it  is  absolutely  void;  but  if,  on  the 
other  hand,  it  is  a  remainder,  it  must 
take  effect,  if  at  all,  upon  the  deter- 
mination of  the  preceding  estate.  In 
the  latter  case,  the  event  may  or  may 
not  happen  before  or  at  the  instant 
the  preceding  estate  is  determined, 
and  the  limitation  will  fail  or  not, 
according  to  tlio  ev(>nt.  It  may  tlms 
be  prevent(Ml  from  taking  effect,  but 
it  can  never  lead  to  remoteness.  That 
objection,  therefore,  (^annot  bo  sus- 
tained against  the  valiilily  of  a  con- 
tingtiiit  rtMuainder.  IJut  this  dictum 
of  the  court  is  not  to  \w  in  any  wise 
construed  as  ihM^uring  tliat  contin- 
gent n'mainders  are  not  subject  to 
the  rule  against  perpetuities." 


1344:  LAW    OF    AVILLS.  [§   882, 

particular  freehold  estate  to  support  it,^  and  that  the  tenant  of 
the  particular  estate  may,  if  he  choose,  Avholly  defeat  the  con- 
tingent remainder  before  it  vests  at  all.-  So,  too,  a  remainder 
in  fee  cannot  at  the  common  law  be  limited  after  a  fee;  as,  for 
example,  a  gift  of  land  to  A.  in  fee  simple,  and  if  he  die  with- 
out issue  then  remainder  in  fee  to  B,  After  the  passage  of  the 
statute  of  Avills  and  the  establishment  of  uses,  many  future  and 
contingent  estates  in  land,  which  would  not  be  valid  as  common- 
law  remainders,  were  recognized  by  the  courts.  They  resolved, 
in  every  case  where  it  was  possible,  to  carr}'  out  the  intention 
of  the  testator.  If  the  testator  had  intended  to  create  by  will 
a  common-law  contingent  remainder,  and  it  appeared  that  the 
devise  would  fail  as  such  because  not  consistent  with  legal 
rules,  the  courts  supported  the  limitation  by  will  under  the 
name  of  an  executory  devise.^ 

An  executory  devise  differs  from  a  contingent  remainder  in 
several  important  particulars.  In  the  first  place  an  executory 
devise  of  a  fee  simple  is  valid  though  there  be  no  particular 
estate  to  support  it.  A  freehold  may  be  created  by  an  execu- 
tory devise  to  commence  in  the  future,  which  could  not  bo 
done  in  the  case  of  a  common-law  contingent  remainder.  If 
the  prior  estate  terminates  before  the  executory  devise  vests, 
the  fee  is  not  in  abeyance,  but  devolves  upon  the  heirs  of  the 
testator,  subject  to  defeasance  by  the  happening  of  the  contin- 
gency upon  which  it  is  to  vest  in  the  executory  devisee. 

As  soon  as  the  validity  of  executory  devises  was  firmly  es- 
tablished and  it  became  possible  to  carve  out  future  interests 
of  a  contingent  nature,  through  Avhich,  because  the  person  who 
■was  to  take  the  fee  was  not  knoAvn,  the  power  of  conve3nng 
the  fee-simple  title  was  suspended  for  a  more  or  less  indefinite 
period,  it  also  became  necessary  for  the  courts  to  fix  some  limit 
to  the  period  of  suspension  in  order  that  a  perpetual  suspension 
of  the  power  of  alienation  might  be  avoided.  Contingent  re- 
mainders might  be  defeated  by  the  alienation  of  the  particular 
tenant,  and  estates  tail  w^ere  also  barrable  by  common  recov- 
eries. But  executory  devises,  unless  they  follow  an  estate  tail, 
are  whoU}^  exempted  from  any  control  of  the  first  taker  of  the 
fee.*    The  executory  devise  cannot  be  destroyed  by  any  action 

1  See  ante,  %  854.  3  See  ante,  %  874. 

2  See  ante,  ^  881.  *  See  ante,  g  875. 


§  SS2.]  PERPETUITfES    AXD    EEMOTE^'ESS    OF   VESTING.  1345 

on  his  part  or  any  alteration  in  or  destruction  of  the  nature  of 
his  estate.^ 

When  the  courts  were  called  upon  to  determine  the  validity 
of  the  executory  devises  and  shifting  and  springing  uses  which 
were  constantly  being  created  after  it  had  been  discovered  that 
land  could  be  devised  to  uses  in  ways  not  possible  at  common 
law,-  it  became  necessary  to  determine  the  period  within  which 
the  fee  devised  by  an  executory  devise  or  by  a  future  contingent 
use  must  vest.  Every  executory  devise  which  is  contingent  is 
a  perpetuity  so  far  as  it  goes,  because  the  fee  is  rendered  abso- 
lutely inalienable  during  the  period  in  which  the  future  devi- 
sees are  not  ascertained  or  ascertainable,  and  the  fee  cannot  be 
conveyed  though  all  mankind  should  join  in  the  conveyance. 
The  courts,  in  formulating  the  rule,  resorted  to  the  old  prin- 
ciple of  remoteness,  as  that  principle  was  exemplified  and  in- 
volved in  the  giving  of  a  contingent  remainder  in  fee  to  the 
unborn  child  of  an  unborn  person.  The  practical  effect  of  this 
rule  of  remoteness  was  that  the  contingent  remainder  was  void 
if  it  did  not  vest  in  and  during  the  life  of  a  person  in  being, 
i.  e.j  the  life  of  the  tenant  of  the  particular  estate.  This  being 
so,  the  courts  fixed  upon  a  life  or  lives  in  being  as  the  measure 

1 "  The  executory  devise  is  wholly  cuted  in  the  first  taker  it  is  a  species 
exempt  from  the  flower  of  the  first  of  entailed  estate  to  the  extent  of 
devisee  or  taker.  If,  therefore,  there  the  authorized  period  of  limitation, 
be  an  absolute  power  of  disposition  It  is  a  stable  and  unalienable  interest, 
given  by  will  to  the  first  taker,  as  if  and  the  first  taker  has  only  the  use 
an  estate  be  devised  to  A.  in  fee,  and  of  the  land  or  chattel  pending  the 
if  he  die  possessed  of  the  property,  contingency  mentioned  in  the  wilL 
without  lawful  issue,  the  remainder  The  execuloxy  devise  cannot  be  de- 
over,  or  remainder  over  of  the  proi>  vested  even  by  a  feoffment;  but  the 
erty  wliich  he,  dying  without  heirs,  stability  of  these  executory  limita- 
should  leave,  or  witliout  selling  or  tions  is  nevertheless  to  be  understood 
devising  the  same.  In  all  such  cases  with  this  single  qualilication,  tiiat,  if 
the  remainder  over  is  void  as  a  re-  an  executory  devise  or  interest  fol- 
inainder  because  of  the  preceding  lows  an  estate  tail,  a  conunon  re- 
lee,  and  Ls  void  by  way  of  executory  covery,  suffered  by  the  tenant  in  tail 
devi.se  because  the  limitation  is  in-  before  the  condition  occurred,  will 
consi-stent  with  the  absolute  estate  bar  the  estate  depentling  on  that 
or  i>ower  of  disposition  expressly  condition,  for  a  conunon  recovery 
given  or  necessarily  implied  by  the  bars  all  suljsequcnt  and  conditional 
will.  A  valid  executory  devise  can-  limitations.''  4  Kent,  Com.,  pp.  :l'01, 
not  subsist  after  an  absolute  power  liO"). 

of    disiKjsilion    in    the    first    taker.  *,Suu  U)(/c,  ^  771  et  se(i. 
When  an  executory  devise  is  exo- 


13-J:G  LAW    OF    WILLS.  [§  882. 

of  the  time  during  which  the  power  to  alienate  the  fee  could 
be  allowed  to  continue  in  suspense. 

At  first  the  period  was  confined  to  one  life  in  being,  wdiich 
was  exactly  the  rule  of  remoteness  of  a  remainder.^  Afterwards 
it  was  held  that  the  period  should  be  measured,  not  by  one  life, 
but  by  the  duration  of  the  lives  of  persons  wiio  were  all  in  ex- 
istence at  the  same  time;  the  court  quaintly  observing  that  it 
was  enough  if  "the  candles  were  all  lighted  together."  In, 
other  words,  the  period  of  the  suspension  of  the  power  of  aliena- 
tion, though  measured  by  a  hundred  lives,  could  not  possibly 
endure  longer  than  the  life  of  the  longest  liver  of  them.-  It 
was  not,  however,  until  the  year  1736  that  the  rule  of  perpetui- 
ties in  its  present  form,  i.  e.,  with  the  addition  of  the  term  of 
twentj^-one  years  to  the  period  of  life  or  lives  in  being,  was 
firmly  established.  In  a  case  decided  in  the  year  mentioned^ 
it  was  determined  that  an  executory  devise  to  such  unborn  son 
of  a  feme  coverte  as  should  first  attain  the  age  of  twenty-one 
was  valid,  for  the  utmost  space  of  time  that  the  fee  w^ould  be 
suspended  was  the  life  of  the  mother  and  the  subsequent  in- 
fancy of  the  son.  Later,  a  fraction  of  a  year  was  added  to  the 
period  to  allow  for  the  birth  of  a  posthumous  child  to  a  life 
tenant,  which  brings  the  rule  of  perpetuities  to  the  condition  in 
which  we  now  find  it  where  it  is  not  modified  by  statute.* 

The  addition  of  twenty-one  years  to  the  period  of  perpetuity 
is  the  addition  of  an  absolute  term  which  has  no  reference  ta 
the  actual  infancy  of  any  person  wdiatever.  That  is  to  say,  the 
testator  will  be  permitted  to  suspend  the  power  of  alienation 
for  a  life  or  lives  in  being,  and  for  any  fixed  period  of  time  in 
addition  thereto  not  to  exceed  twenty-one  years.  He  may  sus- 
pend the  alienation  for  ten  years  or  twenty,  or  for  any  stated 
time  less  than  tw^enty-one,  and  need  not  limit  it  in  express 
terms  for  the  infancy  of  any  person  born  or  unborn.  But  in 
the  same  case  in  which  this  point  was  decided,  it  was  also  de- 
termined that  the  period  of  gestation  was  not  in  every  case 

1  Pells  V.  Brown,  Cro.  Jac.  590;  nite  failure  of  issue  was  valid  was 
Snowe  V.  Cutler,  1  Lev.  135.  decided  in  the  affirmative.     Duke  of 

2  Goring  v.  Bickerst^ffe,  Pollexfen,    Norfolk's  Case,  2  Ch.  Cas.  1. 

31.    To  the  same  effect  is  Scatter-  '  Atkinson  v.  Hutchinson,  3  P.  W. 

good  V.  Edge,  1  Salk.  229.     In  the  258:  Goodman  v.  Goodman,  1  Blacks, 

year  1685  the  question  whether  an  R  188;  Long  v.  Blackall,  7  T.  R.  100. 
executory  devise  over  upon  a  defi- 


§  SS3.]  PERPETUITIES    AND    REMOTENESS    OF    TESTING.  134:7 

to  be  considered  as  formino^  Avitli  the  lives  in  being;  and  the 
twenty-one  years,  a  gross  term,  irrespective  of  the  non-exist- 
ence of  an  infant  en  venire  sa  mere.  The  suspension  cannot 
go  beyond  twenty-one  years.  A  period  of  gestation  is  only  to 
be  allowed  in  those  cases  where  it  actually  exists.^ 

§  883.  The  possibility  of  the  happening  of  the  contingent 
event. —  The  principle  of  law  by  -which  a  fee  simple  given  to 
commence  in  the  future  must  vest,  if  it  is  to  be  valid  at  all, 
within  a  life  or  lives  in  being  and  a  minority,  is  infringed  if  the 
vesting  of  the  future  estate  be  made  to  depend  upon  some  con- 
tingent event  which,  while  it  inay  possiblv  happen  within  the 
laAvful  period,  may  2)ossihly  not  happen,  loithin  that jperiod.  The 
possibility  of  the  event  happening  is  the  legal  test  of  a  perpe- 
tuity, not  the  fact  that  it  actually"  will  happen  or  that  it  lias 
happened.  The  fee  must  of  necessity  vest  and  thus  become 
capable  of  alienation  within  the  period  limited  by  the  rule  of 
law  under  consideration.  It  must  he  certain  at  the  time  that  the 
limitation  is  created  that  it  will  so  vest.  For,  though  it  may 
then  be  extremely  probable  that  the  fee  will  vest,  still  if  there 
is  a  possibility  that  the  vesting  will  be  postponed  beyond  the 
period  of  the  rule,  either  because  of  the  character  of  the  con- 
tingent gift  itself,  or  because  of  an  express  direction  contained 
in  the  "will,  the  limitation  will  be  void  because  it  will  be  too 
remote.  The  primary  limitation  of  the  fee  must  be  so  framed 
that  it  shall  of  necessity,  under  any  and  all  circumstances  as 
they  exist  at  the  death  of  the  testator,  take  effect  as  a  vested 
estate  within  the  period  allowed  by  the  law.-  Thus,  to  illus- 
trate, a  limitation  by  means  of  which  the  vesting  of  the  fee  is 
indefinitely  postponed  until  incumbrances  upon  ])roperty  shall 
be  paid  off,'  or  a  devise  of  property  absolutely  in  trust,  witli- 

>Ca(l.'ll  V.  Palmer.  7  BIIkIi.  20'2.  1  Dana  v.  Murray.  102  N.  Y.  004.  filT; 

CI.  &  Fin.  :57J,   10  Hin■,^   HO,  1  Sim.  Haynes  v.  .Slicrman,  117  N.  Y.  A'.i:\, 

\1\\.  4:J7:  Punly  v.  Ilayt,  U2  N.  Y.  4 IG.  457; 

^Sears  v.  Putnam,  102  Mass.  5,  7;  Jar-kson  v.  Phillips.  14  Allen  (Mass.), 

Fosflirk  V.  Fosdick.  fi  .\llen  (Mass.),41,  550,  572;    Prattle  Squarts  Church  v. 

-l:}:  Merritt  v.  Pueknam,  77  Me.  25:{.  (Irant,  :J  (Jray  (Mas.s.).  142;  Odell  v. 

250;  Hrfx.ks  v.  Pelfast,  00  Me.  :ilM.  ;J2.'{;  Odeli.  10  Alien  (Mass.).  5.  7;  Leake  v. 

Meek   V.    HriKP*.  H7   Iowa.   (U«,  010;  P(.l)insr.n,  2  Mer.  :i(i:5;  (irillltli  v.  Pow- 

Konl  V.  r-'onl,  70  Wis.  10.  (il :  Sehettlr-r  nal.  i:t  Sim.  :{0:{. 

%.  Smith.  41   N.    Y.  :{2H;  Thomas  v.  :•  Killam  v.  Allan,  02  Barb.  (N.  Y.) 

(Jregg,  70   Mil.   100,   21    Atl.   li.   41H;  005. 


134S  LAW  OF  WILLS.  [§  883. 

out  a  power  of  sale  in  the  trustee,  until  a  charitable  corpora- 
tion shall  be  incorporated  to  whose  use  the  property  shall  be 
devoted,  or  a  condition  that  a  house  or  parcel  of  land  shall  be 
devoted  to  a  particular  purpose  for  an  indefinite  period,  where 
the  purpose  is  not  a  charitable  one,  with  a  limitation  over  upon 
the  breach  of  the  condition,  or  any  other  disposition  of  the 
property  by  which  the  vesting  of  the  fee  is  indefinite]}^  post- 
poned, or  by  which  it  is  postponed  for  a  period  which  is  not 
measured  by  a  life  or  lives  in  being  and  twenty-one  3'ears  there- 
after, is  invalid  though  it  may  happen  ultimately^  Jjy  reason  of 
unexpected  circumstances^  that  the  fee  shall  in  fact  vest  within  the 
'period  laid  down  hy  the  law  under  the  rule} 

So  where  property  was  given  by  the  testator  to  his  children 
for  their  lives  and  to  their  husbands  for  their  lives,  respectively, 
and,  after  the  death  of  an}^  child  and  her  husband,  then  to  the 
chiklren  of  the  marriage,  the  limitation  to  the  grandchildren 
was  held  void  because  of  tlie  possibiiit}^  that  a  child  might,  after 
the  death  of  the  testator,  marry  a  man  who  was  not  in  being 
at  the  death  of  the  testator,  and  that  this  unborn  person  might 
be  the  survivor  of  the  marriage.^  So  also  a  gift  over  of  the 
share  of  a  devisee,  in  case  of  his  or  her  death  without  issue  dur- 
ing the  life  of  his  or  her  wife  or  husband,  is  void  for  remote- 
ness.  The  legatee  may  marry  a  person  not  in  being  at  the  date 
of  the  death  of  the  testator,  who  may  sur\'ive  the  legatee  more 
than  twenty-one  years,  and  the  gift  over,  because  of  this  possi- 
bility, is  therefore  invalid.^  Under  the  same  amplification  of 
the  general  rule  would  also  be  included  a  gift  to  a  person  un- 

1 1  cannot  do  better  in  this  connec-  templated  be  Avhat  it  may,  and  the 
tion  than  to  quote  the  very  lucid  ex-  probability  of  its  early  occurrence  as 
planation  of  this  point  made  by  Mr.  great  as  it  may  be,  it  will  in  every 
Lewis,  who  says  on  page  478  of  his  case  be  of  too  remote  expectancy, 
work:  '•  The  rule  requiring  all  future  and  a  Imiitation  upon  it  will  there- 
limitations  to  be  such  as,  if  they  take  fore  always  be  void  unless  either 
effect  at  all,  will  necessarily  operate  fi"om  the  nature  or  internal  quality 
within  the  period  of  lives  in  being  of  the  contingency,  or  fi'om  express 
and  twenty-one  j'ears,  obviously  con-  provisions  and  restrictions  it  be  cer- 
demns  as  invalid  every  gift  of  a  fut-  tain  that  the  event  which  is  to  give 
ure  interest  in  property  made  to  effect  to  the  limitation  will  liappen, 
depend  on  an  event  which,  although  if  it  at  all,  within  the  period  of  lives 
it  may  possiblj'  happen  within  tiie  in  being  and  twenty-one  years." 
allowed  period,  may  possibly  not  hai>  -  Loring  v.  Blake,  98  Mass.  2.')3. 
pen  until  after  the  expiration  of  such  ^Uodson  v.  Ball.  14  Sim.  558. 
period.    ,    r    .    Let  the  event  con 


§  SS4:.]  PEEPETUITIES    AXD    REMOTENESS    OF    YESTIXG.  1340 

horn  at  the  death  of  the  testator ^xahose  description  is  jparticularJy 
qualified^  but  who  may  not  correspond  to  the  description  within 
the  legal  period.  Such  would  be  the  case  of  a  devise  to  the 
eldest  son  of  A,,  who  has  no  son  at  the  death  of  the  testator, 
to  vest  in  him  when  he  shall  marry  or  enter  upon  the  practice 
of  a  particular  profession.  The  devise  to  such  a  person  will  be 
void,  though  he  may  by  possibility  come  into  being  and  qualify 
during  the  legal  period.  Thus,  in  the  example  given,  A.  may 
have  a  son  born  to  him  who  may  marry  or  otherwise  qualify 
during  the  life  of  his  father.  But  the  possibility  that  he  will 
not  do  so,  however  slight,  renders  the  devise  to  him  and  the 
devise  over  void.  This  applies  to  all  personal  qualifications 
and  to  the  performance  of  all  conditions  precedent  or  subse- 
quent which  are  not  necessarily  fulfilled  by  an  unhorn,  devisee 
hefore  he  shall  attain  majorit}^  Thus,  where  the  testator  gave 
lands  in  fee  to  the  son  of  A.  who  should  become  a  clergyman 
of  the  Church  of  England,  but  if  no  such  son,  then  in  fee  to  B., 
and  A.  died  without  ever  having  had  a  son,  the  devise  was  void 
for  the  reason  that,  according  to  ecclesiastical  rules,  no  person 
can  be  ordained  until  he  shall  have  attained  his  twenty-fourth 
year.  The  power  of  alienation  might  thus  possibly  be  sus- 
pended during  the  life  of  A. ;  for,  until  all  his  cliildren  were 
born,  it  could  not  be  told  which  would  become  a  clergyman, 
and  at  least  twenty-three  years  thereafter,  though  it  is  evident 
that  if  A.  had  a  son  born  to  him  and  A.  lived  long  enough,  that 
son  might  have  acquired»the  proper  qualification  in  the  life-time 
of  his  father.^  But  a  devise  to  A.,  who  is  a  living  person  at  the 
death  of  the  testator,  to  vest  when  he  shall  marry,  or  upon  the 
performance  of  another  act  upon  his  part,  is  valid ;  for  the  con- 
dition, if  performed  at  all,  must  of  necessity  be  performed  dur- 
ing his  life-time. 

ji  884.  The  validity  of  future  limitatious  to  unborn  per- 
sons.—  The  rule  of  perpetuity,  and  the  ancient  rule  of  remote- 
ness whicli  was  applicable  to  contingent  remainders,  do  not,  it 
hardly  seems  necessary  to  say,  {)revent  the  giving  of  future  in- 
terests for  life,  or  in  fee  simj)le,  to  persons  who  are  uiilioiu  at 
the  death  of  the  testator,  ])r(jvided  that  such  unborn  persons 
must  necessarily  bcj  Ixjrn  within  the  period  ol'  thc^  rule.  Tho 
limitation  of  a  contingent  i-eMiain<ler  in  lee  to  iinliorn   jx-rsons 

1  Procter  v,  liibhop  of  I'.alli  mikI  W.IIs,  ','  II.  HI.  Xi^. 


1350  LAW    OF    WILLS.  [§  8S4. 

who  may  be  the  chihlren  or  the  heirs  of  a  life  tenant  or  of 
other  persons  is  so  common  that  the  fact  need  only  be  men- 
tioned to  be  accepted  as  a  valid  rule  of  testamentary  law.^  It 
is  absurd  to  admit  that  a  fee  may  be  so  limited  and  be  valid, 
and  at  the  same  time  to  deny  that  a  life  estate  may  be  thus 
given,  for  obviously  the  greater  includes  the  less. 

The  only  absolute  requisite  to  the  validity  of  a  contingent 
remainder  to  unborn  persons,  either  for  life  or  in  fee,  is  that 
they  shall  he  horn  during  the  imrticular  estate^  and  this  is  true 
whether  they  are  the  children  or  the  heirs  of  the  life  tenant 
or  of  some  other  person.  And  under  the  modern  rule  of  per- 
petuities, which  regulates  the  vesting  of  executory  devises  and 
future  equitable  estates  to  which  this  rule  is  not  applicable, 
estates  may  be  limited  by  way  of  executory  devises  to  unborn 
persons  for  their  respective  lives,  or  to  several  unborn  persons 
in  succession  for  life,  and  to  their  issue,  to  go  from  one  to  an- 
other on  a  definite  failure  of  issue,  if  by  the  terras  of  the  will 
all  the  unborn  persons  must  of  necessity,  and  in  order  to  talie 
any  interests  at  all,  be  born  during  the  life  or  lives  of  some  one 
or  more  persons  in  being  at  the  testator's  death,  no  matter  how 
man}''  such  persons  there  may  be.- 

At  the  common  law  a  remainder  could  not  be  created  with- 
out a  particular  estate  of  freehold  which  was  in  existence  at 
its  creation.  If  the  particular  estate  were  given  to  an  unborn 
person,  or  to  a  person  incapable  of  taking,  and  who  could  not 
receive  livery  of  seizin,  the  remainder,  whether  vested  or  con- 
tingent, was  gone  forever,  because  at  common  law  a  freehold 
could  not  vest  in  futuro?  But  the  remainder  could  not  be 
said  to  be  invalid  for  remoteness.  Moreover,  the  courts  of 
equity  recognized  a  distinction  where  the  future  estate  was  at- 
tempted to  be  created  by  a  will  or  by  a  feoffment  to  use,  and 
upheld  it  though  it  was  limited  to  begin  after  a  life  estate  de- 
vised to  a  person  unborn  at  the  date  of  its  creation.*  In  the 
case  of  executory  devises  and  future  uses,  which  do  not  require 
the  creation  of  particular  estates  to  support  them,  the  rule  was 
quite  different  from  the  case  of  contingent  remainders  created 

iSee  ante,  %%  558.  612.  617,  857.  ^2  Rol.  Abr.,  p.  415c;  Plowd.  33a, 

2  Cadell  V.  Palmer,  7  Bligh,  202,  10  4Ua;  Comyn's  Digest,  tit.  Estate,  B., 
Bing.  140.  14. 

3  4  Kent,  Com.,  p.  229. 


.§  885.]       PEEPETurriEs  and  kemoteness  of  testing.  1351 

by  grant  or  feoffment.  By  an  executory  devise  a  life  estate 
might  be  given  to  an  unborn  person  and  tlie  remainder  in  fee 
might  be  limited  over  to  other  unborn  persons,  provided  they 
were  not  the  issue  of  the  life  tenants,  and  provided  they  would 
all  be  born  within  the  life  or  lives  of  persons  in  being  at  the 
death  of  the  testator  and  twenty-one  years  thereafter.  The 
fee  remains  in  the  testator's  heirs  subject  to  vesting  in  the  un- 
born persons  when  they  shall  come  into  being  during  the  legal 
period.^ 

§  8S5.  Tlie  rule  of  remoteness  of  vesting  and  of  perpetui- 
ties in  relation  to  contingent  gifts  to  grandchildren  as  a 
class. —  An  executory  contingent  limitation  of  the  fee  to  vest 
in  the  grandchildren  of  the  testator  as  a  class,  after  a  life  es- 
tate in  their  father,  he  being  a  child  of  the  testator,  as  it  is  a 
contingent  remainder,  is  never  void  for  remoteness,  as  it  must  vest, 
if  it  vest  at  all,  during  the  existence  of  the  particular  estate, 
or  eo  instantl  that  this  estate  comes  to  an  end.  It  is  obvious,  as 
the  parent  is  a  child  of  the  testator,  that  he  must  be  in  esse  at 
the  death  of  the  testator,  and  it  matters  not,  so  far  as  the  rule 
of  remoteness  is  concerned,  that  he  is  en  ventre  sa  mere  at  that 
date.  And  though  he  may  be  unborn  when  his  father  dies,  all 
Jils  children  must  of  necessity  be  born  during  his  life  or  Avithin 
the  period  of  gestation  at  its  termination.  Hence,  the  contin- 
gent remainder,  though  it  be  to  grandchildren  as  a  class,  some  of 
whom  may  not  be  born  until  after  the  death  of  the  testator, 
is  valid,  as  it  must  at  the  latest  vest  at  the  termination  of  the 
parent's  estate.  On  the  other  hand,  if  the  gift  to  the  grand- 
children of  the  testator  be  an  executory  devise  after  a  fee,  it  is 
bound  to  vest  within  the  limits  of  the  modern  rule  of  perpetui- 
ties, for  all  the  devisees,  i.  e.,  the  testator's  grandchildren,  must 
come  into  being  within  the  life  time  of  their  parent,  or  within 
a  possible  period  of  gestation  thereafter. 

And  when  the  gift  to  the  grandchihlren  of  tlie  testator  is  an 
executory  devise,  or  a  future  contingent  equitable  interest, 
t/ujugh  not  wJiere  it  is  a  contingent  remainder  at  the  common  law, 
a  further  postponement  of  the  vesting  of  the  fee  until  tlie  grand- 
children shall  attain  majority  does  not  render  it  invalid.  A 
devise  in  trust  to  pay  the  income  of  a  fund  to  the  daughters  of 

1  Carruiv  v.  Kain.  40  \V.  Va.  7.-.H.  2:\  t..ii.  70  Md.  lis,  17  All.  It.  ;J:."J.  And 
S.  ¥L  II.  G.'jO;  I'umiiugtun  v.  IViiniiij;-    sim;  also  .^  W7-L 


1352  LAW  OF  WILLS.  [§  885. 

the  testator  during  their  lives,  and  at  their  decease  the  trust 
fund  to  be  divided  amon^:  their  children  who  are  then  livinfr 
and  the  issue  of  any  deceased  chikl  as  they  arrive  at  legal  age, 
is  valid.  The  grandchildren  who  survive  the  daughters,  and 
the  issue  of  deceased  grandchildren  who  also  survive  the  daugh- 
ters, form  a  composite  class  who  taJce  a  vested  interest,  the  issue 
by  substitution  for  their  parents.  All  great-grandchildren  who 
come  into  being  before  the  death  of  the  life  tenants  are  capable 
of  taking  by  substitution,  but  not  those  born  subsequently,  as 
that  would  be  an  executory  gift  to  a  class  which  is  too  remote.^ 
A  limitation  in  fee  to  the  great-grandchildren  of  the  testator, 
unless  they  are  to  take  hy  substitution  a  jparenfs  share,  is  neces- 
sarily void  as  a  contingent  remainder,  because  of  the  remote- 
ness of  the  vesting,  for  it  may  not  by  possibility  vest  in  the 
great-grandchildren  during  the  existence  of  the  particular  es- 
tate or  at  its  termination.  It  is  a  remainder  limited  to  a  class 
of  persons  {i.  e.,  the  testator's  great  grandchildren)  who  are  un- 
born at  the  date  of  its  creation,-  and  for  that  reason  alone  it  is 
void  as  a  common-law  remainder.' 

It  will  generally  be  found,  however,  that  executory  limita- 
tions of  a  contingent  character  to  the  grandchildren  of  A.  as  a 
class  or  another  person  than  the  testator,  A.  being  alive  at  the 
death  of  the  testator,  are  void.  An  example  of  this  would  be 
a  contingent  remainder  to  the  grandchildren  of  A.  after  life 
estates  in  their  father  and  grandfather  respectively.  The  lim- 
itation to  A.'s  children  would  certainly  be  valid,  as  it  must  of 
necessity  vest  in  them  during  A.'s  life  or  at  once  on  his  death. 
But  A.  may  have  children  born  to  him  after  the  death  of  the 
testator,  who,  in  their  turn,  may  subsequently  and  after  the 
death  of  their  parent  have  children  born  to  them;  and  as  these 
after-born  grandchildren  are,  according  to  the  terms  of  the  class 
gift,  to  participate  as  members  of  the  class  in  the  contingent 
gift  with  those  who  may  be  born  within  the  legal  period,  the 
whole  gift  to  the  grandchildren  of  A.  is  invalid.  Thus,  where 
the  limitation  was  to  A.  for  his  life,  remainder  to  A.'s  children 
for  their  lives,  remainder  to  A.'s  grandchildren  in  fee,  the  latter 

iln  re  Siddall's  Estate,  180  Pa.  St.  213;  Lockridge  v.  Mace,  109  Mo.  16'2, 

127,  36  Atl.  R  570.  169,  18  S.  W.  R.  1145;  Stout  v.  Stout, 

2  See  ante,  §  881.  44  X.  J.  Eq.  479,  15  Atl.  R.  843. 

3  Somerville  v.  Lethbridge,  6  T.  R. 


§  SSG.]  PERPETUITIES    AXD    REMOTENESS    OF    VESTING.  1353 

remainder  was  held  void  for  remoteness.^  And  in  a  case  -  where 
an  estate  was  disposed  of  as  follows:  to  A.  for  his  life,  re- 
mainder to  A.'s  eldest  son  for  his  life,  remainder  to  E.  for  his 
life,  and  after  the  death  of  all  the  life  tenants  "  then  in  fee  to 
all  the  children  of  A.  then  living,  and  to  the  children  of  those 
who  may  then  be  dead,  but  if  there  be  no  child  or  grand- 
children of  A.  then  over,"  the  devise  to  the  grandchildren  was 
held  to  be  original  and  not  substitutional,  and  therefore  con- 
tingent and  void.  A.  in  this  case  left  no  children.  So  a  devise 
in  trust  for  the  daughter  of  the  testator  for  life,  and  on  her 
death  to  her  children  until  they  arrive  at  the  age  of  twenty-five, 
then  to  be  divided  amono^  the  then  living  grandchildren  of  the 
testator,  is  void,  as,  if  there  were  children  born  to  the  daughter 
after  the  death  of  the  testator^  the  trust  might  be  extended  beyond 
her  life  and  twentj-one  years  thereafter.*  So  where  a  future 
estate  was  to  vest  in  the  o-randchildren  of  the  testator  in  fee 
when  they  shall  attain  the  age  of  twenty-one  3^ears,  with  a  life 
estate  in  the  parent,  coupled  with  a  power  to  appoint  among 
her  children  by  will,  an  appointment  under  this  power  to  the 
children  of  the  devisee  for  life  is  invalid ;  as,  when  read  in  con- 
nection with  the  will  creating  the  power,  the  fee  is  suspended 
for  a  period  which  may  possibly  extend  beyond  the  rule.* 

§886.  The  invalidity  of  the  suspension  of  the  power  of 
alienation  for  a  period  which  is  indefinite,  or  which  is  not 
measured  by  lives. —  Both  according  to  the  common-law  rule 
of  perpetuities  and  under  the  statutory  regulations  which  have 
been  enacted  in  the  several  states  of  the  American  Union,  the 
life  or  lives  of  a  jperson  or  of  persons  who  are  in  heing  at  the 
death  of  the  testator  must  he  selected  as  the  measure  of  the  period 
during  which  the  vesting  of  the  fee  can  be  validly  suspended. 
Hence  every  devise,  whether  it  be  given  absolutely  or  in  trust, 
which  by  its  terms  forbids  the  sale  of  the  fee  simple  of  the 
])roperty  during  an  indefinite  period  of  time  which  is  not  ta 
terminate  with  the  life  or  lives  of  living  persons,  or  which  sus- 
pends the  alienation  of  the  fee  during  a  delinite  and  fixed  pe- 

1  In  re  Sayres'  Trasts,  L.  K.  G  E(i.  N.  E.  R,  25!);  Duhuiy  v.  MicMleton,  72 

:}19.  Md.  07,  19  Atl.  R.  140. 

^Stuart  V.  Cockerell,  K  R.  5  Cli.  ■•  Thomas  v.  Urogg,  70  Md.  109,  24 

A  pp.  71:3.  Atl.  K.  118. 

3  Lawrence  v.  Smith,  Wi  III.  M9,  l.j 


1351  LAW    OF    WILLS.  [§  88G. 

riod  not  similarly  measured,  is  void,  irrespective  of  the  length 
of  the  time  during-  which  the  power  of  alienation  is  in  abey- 
ance. And  it  is  not  material  whether  the  power  of  alienation 
shall  be  suspended  for  a  month  or  for  a  hundred  years  after 
the  death  of  the  testator,  provided  the  fee  cannot  be  sold  within 
a  life  or  lives  in  being  and  twenty-one  years  thereafter.^  Thus, 
in  the  state  of  New  York  and  elsewhere,  a  gift  which  is  to  vest 
in  a  charitable  corporation  which  is  not  in  existence  at  the 
death  of  the  testator,  but  which  is  to  be  incorporated  at  some 
time  in  the  future,  when  the  gift  will  vest  in  the  corporation, 
is  void,  if  the  vesting  is  suspended  for  an  indefinite  period  not 
measured  by  lives  in  being. 

A  suspension  for  a  term  of  years,  however  short,  is  invalid ; 
as,  for  example,  a  suspension  of  the  power  of  sale  for  one  year.'- 
And  the  same  rule  was  invoked  in  a  well-considered  case  de- 
cided by  the  Lord  Chancellor  of  England,'^  where  the  testator 
bequeathed  money  in  trust  to  be  distributed  among  the  chil- 
dren of  A.  who  should  be  living  at  the  end  of  twenty-eight 
years,  and  if  no  children  of  A.  were  living  to  the  children  of 
E.  then  living}     In  this  case  it  will  be   noticed  that  the  gift 

iln  re  Walkerly's  Estate,  41  Pac.  R.  563,  32  N.  Y.  S.  183;  Haynes  v. 

R.  772,  108  Cal.  627;  Anthony  v.  An-  Slieruian,  117  N.  Y.  433,  22  N.  E.  R. 

thony,  55  Conn.  256.11  Atl.  R.  623;  938;  Henderson  v.  Henderson,  46  Hun, 

Fowler  v.  Duhme.  143  Ind.  248,  42  509. 

N.  E.  R.  623;  In  re  Stephens,  45  La.  2  Tucker  v.  Tucker,  5  N.  Y.  408. 
Ann.  962;  Hooper  v.  Hooper,  9  Cush.  3  palmer  v.  Holford,  4  Russ.  403. 
(Mass.)  122,  129;  Sears  v.  Putnam,  102  ^  A  bequest  to  a  charity,  i^rovided 
Mass.  5,  6;  Farrand  V.  Pettit,  84Mich.  it  shall  raise  a  certain  sum  within 
671,48  N.W.R.  156;  Simpson  V.  Cook,  two  years  after  the  death  of  the 
24  Minn,  180,  184,  1  Amer.  Pro.  R.  27,  testator,  is  void.  Booth  v.  Baptist 
32;  Morgan  v.  Masterson,  4  Sandf.  Church,  126  N.  Y.  215,  28  N.  E.  R.  238, 
(N.  Y.)  442;  Trowbridge  v.  Metcalfe,  <  holding  also  that  a  gift  to  an  institu- 
5  App.  D.  318;  Tucker  v.  Tucker,  5  tion  to  be  incorporated  in  the  future 
N.  Y.  408;  Converse  v.  Kellogg,  7  is  void.  A  provision  by  which  a 
Barb.  (N.  Y.)  590;  Underwood  v.  trust  is  created  for  the  purpose  of 
Curtis,  127  N.  Y.  523,  28  N.  E.  R.  585;  carrying  on  the  business  of  the  tes- 
In  re  Fisher,  8  N.  Y.  S.  10;  In  re  Snj'-  tator  for  a  fixed  period  mentioned, 
der,  21  N.  Y.  S.  430;  Montagnini  v.  or  for  an  indefinite  period  to  be  de- 
Blade,  74  Hun,  297,  26  N.  Y.  S.  670;  termined  by  the  testators  trustees. 
Hone  V.  Van  Schaick,  20  Wend,  is  not  valid.  Snyder's  Estate.  21  N.  Y. 
(N.  Y.)  564;  Burrill  v.  Board,  43  N.  Y.  S.  430;  Hamlin  v.  Mansfield.  88  Me. 
254;  In  re  Underhiirs  Will,  6  Deni.  131,138.  A  direction  that  lands  shall 
Sur.  466,  3  N.  Y.  Supp.  205;  Brandt  besoldby  the  executor  when  he  shall 
V.  Brandt,  34  N.  Y.  S.  684, 13  Misc.  R.  see  fit  and  the  proceeds  divided,  but 
431;  Steinway  v.  Steinway,  10  Misc.  making  no  provision  for  the  vesting 


§  8ST.]  PERPETUITIES    AND    EEMOTENESS    OF    VESTING.  1355 

Avas  to  unborn  persons  who  were  to  come  into  being  during  the 
illegal  period  of  a  term  of  years.  A  gift  to  a  living  person,  as 
to  A.  if  he  shall  he  alive  at  the  end  of  a  term  of  years,  a  period 
not  measured  by  lives,  and,  if  he  shall  die,  then  absolutely  on 
his  death  to  others,  is  valid.  Xo  objection,  upon  the  ground  of 
remoteness,  can  be  urged,  for  the  fee  is  sure  to  vest  either  in 
A.  during  his  life-tirae,  if  he  survive  the  term,  or  in  others  im- 
mediately on  his  death.^ 

A  question  may  arise,  where  the  power  of  alienation  is  at- 
tempted to  be  suspended  for  a  fixed  term  of  years,  whether 
the  provision  is  void  altogether  or  whether  it  is  to  be  sustained 
cy  jpres.  The  decisions  are  almost  unanimous  that  the  limita- 
tion is  void  in  toto.  Thus,  if  an  estate  is  not  to  vest  in  fee 
under  a  will  until  the  termination  of  a  life  and  a  period  of 
twenty-nine  years,  the  devise  will  not  be  valid  for  the  life  and 
a  minority,  the  surplus  of  eight  years  being  separated  and  re- 
jected, but  the  whole  devise  is  void.  It  has  been  held,  how- 
ever, in  the  state  of  ISTew  Hampshire,  that  a  devise  of  a  fee  to 
grandchildren  of  the  testator,  "  born  or  to  be  born,"  when  the 
youngest  of  them  should  arrive  at  the  age  of  forty,  was  not 
void  because  it  was  in  contravention  of  the  rule,  but,  under  the 
doctrine  of  cy  pres  mentioned,  the  devise  would  vest  in  those 
grandchildren  who  were  alive  when  the  youngest  grandchild 
^'  born  or  to  Ije  born  "  should  attain  the  age  of  twenty-one  years.' 

§  887.  Tlie  period  is  to  begin  at  the  death  of  the  testator. 
The  condition  of  affairs  which  exists  at  the  death  of  the  testa- 
tor determines  whether  the  gift  is  void  as  a  perpetuity.  When 
it  is  said  that  a  suspension  of  vesting  during  a  life  or  lives  in 
being  is  permitted,  they  must  of  course  be  such  lives  as  are  in 
esse  at  the  death  of  the  testator  and  not  at  the  date  of  the  will.' 
Though  the  state  of  affairs  is  such  that,  should  the  testator  die 

f)f  the  fee  in  tlie  Vicneficiary  or  for  a  riod  of  twenty-one  years.     Sieillor  v. 

final  dispositioD  of  the  estate,  is  in-  Synis  (N.  J.,  lb!)7),  ^8  Atl.  R.  424. 

valid  as  an  attempt  to  create  a  per-  ^  In    re   Daveron.   8  Reports,   085, 

petuity.     IJigelow  V.  Cady  (111.,  1897),  (18S):J)  8  Ch.  421;  Boweu  v.  Church- 

4.S  N.   E.  R.  974.     So  gifts  of  bank  ill.  id. 

Htock  which  are  to  be  distributed  -Kilgfrly  v.  Harkcr.  0(5  N.  11.484, 

among   tiie   employees  of  the  bank  Jil  Atl.  K.  900. 

<luring  its  exisb'nce  under  its  pre.s-  •'Jliiiin'ad    v.   Clark,   OS  N.  W.  R. 

ent  or  future   eharter  are  void,  as  0H9  (Mich..   IHitHj;   In  re  IJrooks,  140 

they  miglit   not  vest  witliin   the  pi--  I'a.  St.  Ml,  •>!  All.  U.  '.' 10. 


1356  LAW   OF  WILLS.  [§  888. 

immediatel}^  after  the  execution  of  his  will,  the  devise  would 
be  void  for  remoteness  of  vesting,  nevertheless  the  will  may 
be  validated  by  events  happening  subsequently  to  the  execu- 
tion and  during  the  life-time  of  the  testator.  So  where  money 
is  given  in  trust  for  A.  for  life,  and,  after  his  death,  to  those  of 
his  children  who  shall  attain  the  age  of  twenty-four,  which  will 
be  invalid  in  case  the  testator  dies  before  A.  docs,  it  will  be  a 
valid  limitation  to  A.'s  children  if  A.  dies  before  the  testator, 
since  the  devise,  in  this  case,  must  of  necessity  vest  within  the 
lives  of  the  children  of  A.  who  are  living  at  his  death. ^ 

§  888.  Tested  estates  are  not  witliiii  the  rule  of  perpe- 
tuities.— The  rule  of  perpetuities  has  no  application  to  estates 
when  the  fee  simple  is  vested,  JSTo  devise  by  which  the  fee 
simple  vests  absolutely,  either  at  the  death  of  the  testator  or 
within  the  period  of  a  life  or  lives  in  being  and  twenty-one 
years,  is  invalid  merely  because  the  possession  and  enjoyment 
are  indefinitely  postponed,  or  are  postponed  for  a  period  not 
measured  by  lives  in  being.-  If,  by  the  language  of  the  will, 
the  estate  is  vested  in  some  one  who  can  alienate  it  absolutely, 
no  suspension  takes  place,  though  a  trust  postponing  the  pos- 
session and  enjoyjnent  is  attached  to  it. 

The  main  difficulty  in  most  cases  is  to  determine  whether 
the  testator,  by  the  language  he  has  used,  meant  to  postpone 
the  vesting  or  merely  to  postpone  the  possession  and  enjoy- 
ment. This  is  altogether  and  purely  a  question  of  verbal  con- 
struction, and  the  question  whether  the  testator,  from  the 
words  he  has  used  in  the  will,  intended  to  give  a  vested  or  a 
contingent  estate,  is  always  to  be  determined,  regardless  of  the 
fact  that  the  limitation  created  may  ultimately  be  invalid  as  a 
perpetuity,  provided  it  is  found  to  be  contingent  after  it  shall 
have  been  construed. 

1  Vanderplank  v.  King,  3  Hare,  17;  Kirk  v.  Kirk,  12  N.  Y.  S.  326;  Saw- 
Williams  V.  Teale,  6  Hare,  251;  Peard  yer  v.  Cubby,  146  N.  Y.  192,  40  N.  E. 
V,  Kekewich,  15  Beav.  173.  R  869,  reversing  26  N.  Y.  S.  426,  73 

^Tarrant  v.  Backus,  28  Atl.  R  46,  Hun,  298;  Hillyer  v.  Vandewater,121 

63  Conn.  277;  Dyson  v.  Ropp,  29  Ind.  N.  Y.  681,  24  N.  E.  R  999;  Coopers 

482;  Jordan  v.  Woodin,  93  Iowa,  451,  Estate,  150  Pa.  St.  576,  24  Atl.  R  1057; 

465;  Phillips  v.  Harrower,  93  Iowa,  Rhodes'  Estate,  147  Pa.  St.  227,   23 

92,  107,  61  N.  W.  R  434;  Pulitzer  v.  Atl.  R  653;  Morgan  v.  Morgan  (R  L, 

Livingstone,  89  Me.  359,  36  Atl.  R  1898),  40  Atl.  R  730;  Potter  v.  Couch, 

635;  Tucker  v.  Bishop,  16  N.  Y.  402;  11  S.  Ct.  1005,  141  U.  S.  296. 
Savage  v.  Burnham,  17  N.  Y.  561; 


§  889.]  PERPETUITIES    AND    EEMOTEXESS    OF    VESTING.  1357 

§  8S9.  Tlie  effect  of  a  power  of  sale  to  prevent  tlie  opera- 
tion of  the  rnle  of  perpetnities. —  The  rule  forbidding  the 
creation  of  a  perpetuity  is  not  transgressed  if  the  fee  simple  is 
absolutely  alienable  by  some  person  who  is  in  being  at  the 
death  of  the  testator  or  who  comes  in  esse  during  the  period 
limited  b}''  the  rule.  Hence  if  the  testator  shall  devise  several 
estates  for  life  in  succession  to  persons  who  are  in  being  at  his 
death,  and  other  life  estates  to  classes  of  devisees  who  are  not 
then  in  being,  with  a  contingent  remainder  over,  so  that  the 
vesting  is  postponed  beyond  the  legal  period,  and  at  the  same 
time  the  testator  confers  an  absolute  power  of  sale  upon  his 
executor  or  upon  his  trustees,  by  virtue  of  which  the  fee  sirrvple 
may  he  conveyed  at  any  tiine^  no  perpetuity  is  created,  for  the 
fee  simple,  though  not  vested,  is  alienable.^  The  fact  that  the 
testator  has  not,  in  clear  and  express  terms,  directed  that 
the  power  of  sale  must  he  exercised  within  a  life  or  lives  in  heing 
and  twenty-one  years,  or  within  whatever  period  may  be  estab- 
lished by  the  statute,  is  not  material,  provided  always  that  he 
has  not  expressly  forbidden  his  trustees  to  exercise  it  within 
that  period  or  postponed  its  exercise  beyond  the  period  of  the 
rule.  If  it  may  be  exercised  at  any  time  it  is  valid  and  does 
not  infringe  the  rule.^  So  it  matters  not  that  the  power  of 
sale  is  discretionarv  in  the  trustee  as  to  the  time  and  mode  of 
its  exercise^  as  where  it  permits  him  to  delay  a  sale  until  such 
time  as  he  shall  be  able  to  secure  a  fair  price,  if  the  direction 
to  sell  is  imperative  and  absolutely  requires  a  sale  within  the 
period  for  the  vesting  of  cstat(;s.*     It  is  generally  held  that 

1  In  re  Walkerly's  Estate,  41  Pac.  tate,  150  Pa.  St.  576,  30  W.  N.  C.  532, 

R.  772,  108  CaL  627;  Pulitzer  v.  Liv-  24  Atl.  R.  1057;  In  re  Myers,  11  Pa. 

ingston,  89  Me.  359,  36  Atl.  R.  635;  Co.  Ct.  R.  194;  Hughes  v.  Hughes, 91 

Ford  V.  Ford,  80  Mich.  42,  44  N.  W.  R.  Wis.  138;  Barber  v.  Railroad  Co.,  17 

1057;  Atwater  v.  Russell,  49  Minn.  S.    Ct.   488.     For    cases  illustrating 

22,  51  N.  W.  R.  624;  In  re  Tower,  49  i)0\vei-8  of  sale  over  lan<ls  wliich  is 

Minn.  371,  52  N.  W.  R.  27;  Young  v.  devised,  see  §§  782,  783. 
Snow  (Mass.,  1890),  45  N.  E.  R.  686;        ^Diddle    v.    Perkiu,   4    Sim.    130; 

Bruce  v.  Nickerson,   141    Mass,  403;  Powis  v.  Cai)ron,  4  Sim.   138;  War- 

Hillyer  v.  Van.lewater,  121  N.  Y.  081,  ing  v.  Coventry,  1  ]\Iylno  &  K.  249; 

24  N.  E.  R.   999;  Persons  v.   Snooks,  Cole  v.  Sewcll,  4  Drew.  &  War.  1,  32; 

40  Barb.  (N.  Y.)  44;  Hope  v.  Brewc-r,  Boyco  v.  llaniiing.  2  Cr.  «&  J.  334. 
130  N.  Y.  473.  31  N.   K.   R.    515;  Dea-        » Atwater  v.  Ru.s.sell,  49  Minn.  22. 

Kan  V.    Von    (;)ahn.  75    llun.   39,  20  51    N.    AV.    R.    024.     Compare    In    ro 

N.  Y.  Siij.|..  9'^9:   In  n;  Uoup»..r's  Ks-  Christii',  13.3  N.  Y.  473. 


1358  LAW  OF  WILLS.  [§  889. 

no  definite  period  need  be  named  by  the  testator  within  which 
a  sale  must  be  made,  if  it  is  clear  that  a  sale  may  be  made  at 
any  time,  or  that  a  sale  tN'^as  intended  to  be  made  within  a  rea- 
sonable time.^  Accordingly  an  imperative  direction  to  sell 
"  as  soon  as  the  trustees  can  conveniently  do  so,"  -  or  at  any  time 
upon  the  demand  or  request  of  beneficiaries,^  is  not  in  contra- 
vention of  the  rule.  And,  a  fortiori,  a  direction  that  a  sale 
shall  be  made  ivlthin  a  year  after  the  death  of  the  testator  is 
within  the  rule.* 

Whether  the  insertion  of  a  power  of  sale,  which  is  only  to 
be  exercised  upon  the  demand  or  with  the  consent  of  a  bene- 
ficiary, is  sufficient  to  take  a  case  out  of  the  rule  of  perpetuities, 
and  whether  such  a  power  will  operate  as  an  indefinite  power 
of  sale,  has  been  disputed.  Where  the  time  for  the  exercise  of 
the  power  is  left  to  the  discretion  of  a  beneficiar}^,  and  his 
choice  is  binding  on  the  trustee,  it  is  but  substituting  the  dis- 
cretion of  the  beneficiary  for  that  of  the  trustee,  and  the  gen- 
eral rule  ought  to  apply.  Thus,  a  naked  power  in  an  executor 
or  a  trustee  to  sell,  at  any  time,  on  a  demand  of  a  majority  of 
the  beneficiaries  to  whom  land  is  given  absolutely  in  fee,  im- 
poses no  illegal  restraint  upon  the  power  of  alienation,  for  all 
take  vested  estates  which  they  may  alien  at  any  time.^  But 
where  the  exercise  of  the  power  of  sale  by  a  trustee  is  abso- 
lutely conditioned  upon  the  consent  of  a  court,  or  on  the  con- 
sent of  a  beneficiary,  so  that  he  may  veto  it  in  his  discretion, 
the  vesting  is  suspended,  for  the  consent  may  be  indefinitely 
refused.^ 

1  In  re  Cooper's  Estate,  150  Pa.  St.  persons,  which  constitutes  an  illegal 
576.  perpetuity,  but  which  is  subject  to  a 

2  Hope  V.  Brewer,  33  N.  E.  R.  558,  general  power  of  sale.  In  the  former 
136  N.  Y.  126.  case  there  is  no  perpetuity.   The  dev- 

3Deagan  v.  Von  Glahn,  26  N.  Y.  isees  may  alien  the  fee   vested  in 

Supp.  898,  75  Hun,  39.  them,  and  therefore  the  fact  that 

^  Deegan  v.  Wade,   144  N.  Y.   573,  the  execution  of  the  power  of  sale 

39  N.  E.  R.  92.  may  be  indefinitely  postponed  by  the 

5  In  re  Cooper's  Estate,  24  Atl.  R  donee  of  it  cannot  create  a  perpetu- 

1057,  150  Pa.  St.  576.  ity.     And,  on  the  other  hand,  if  tlie 

«  Fowler  v.  Ingersoll,  127  N.  Y.  472,  devise  is  to  persons  unborn,  so  that 

28  N.  E.  R.  471.     The  case  of  a  devise  an  illegal  perpetuity  is  created,  the 

of  a  vested  estate  in  fee  simple  sub-  fact  that  some  third  person  has  a 

ject  to  a  general  power  of  sale  in  power  by  which,  at  any  time,  tlie  ab- 

a  trustee  or  in  the  executor,  to  be  solute    interest   may   be    conveyed, 

exercised  at  his  discretion,  differs  cures  the  illegality  of  the  limitation, 
from  a  future  limitation  to  unborn 


§  890.]  PERPETUITIES    AST)   REMOTENESS   OF   VESTING.  1359 

§  890.  The  rule  of  perpetuities  in  its  relation  to  charita- 
ble gifts. —  It  is  commonly  said  in  the  cases  that  the  rule  of 
perpetuities  is  not  applicable  to  gifts  devised  for  charitable 
purposes.  If  by  this  is  meant  that  property  may  be  devoted 
to  and  emplo^'ed  for  charitable  purposes  during  an  indefinite 
period,  the  statement  is  correct.  But  property  given  or  de- 
vised to  charitable  purposes  is  never  within  the  rule  either 
against  perpetuity  or  remoteness,  unless  either  the  title  of  the 
fee  is  not  vested  at  the  date  of  its  devise,  or  unless  the  aliena- 
tion of  the  fee  is  absolutely  restrained.  Ordinarih^  a  gift  to 
a  charity  is  a  vested  gift,  the  title  to  which  passes  c-o  instanti 
at  the  death  of  the  testator,  either  to  a  charitable  corporation 
or  to  a  trustee  appointed  by  the  testator.  The  ownership  of 
the  fee-simple  legal  title  to  the  property  is  not  in  abeyance 
during  one  instant,  as  it  passes  directly  from  the  testator  at  his 
death  to  the  devisee,  whether  corporate  or  individual.  The 
devisee  of  the  property  for  a  charity  may  alienate  the  fee 
under  the  authorization  of  a  court  of  equity  if  at  an}"  time  its 
conveyance  becomes  necessary  to  the  carrying  out  of  the  char- 
itable intent  of  the  testator.  And  though  the  property  which 
has  been  devoted  to  a  charitable  purpose  is,  by  reason  of  the 
peculiar  character  of  that  purpose,  preserved  intact,  and  its  dis- 
persion prevented  for  an  indefinite  period,  the  rule  against  re- 
moteness of  vesting  is  not  infringed,  for  the  legal  title  is  and  re- 
mains vested  during  the  whole  period,  and  the  property  may  be 
sold  at  any  time.  But  the  essence  of  a  charitable  foundation  is 
that  it  shall  be  permanent,  and  that  the  property  involved  shall 
remain  in  the  same  condition  and  ownership  for  a  more  or  less 
lengthy  and  indefinite  period.  A  church,  hospital  or  school, 
and  the  land  on  which  it  stands,  may  endure  for  years  or  for 
centuries,  though  the  trustees  have  power  to  sell  it  at  any  time. 
To  this  extent  the  devotion  of  property  to  charitable  purposes 
of  necessity  takes  it  out  of  the  market,  for  otherwise  the  fluctu- 
ating character  of  the  ownersliip,  which  would  be  incident  to 
pirmitting  it  to  be  traded  in  as  freely  as  other  land,  would  de- 
stroy its  charitable  utility  and  nullify  the  intention  of  the  tes- 
tator. Hence,  it  may  with  saf(3ty  be  said  that  if  the  legal  title 
to  the  land  is  voste<i,  its  inddinitc  devotion  to  a  vidid  char- 
itable purpose,  with  the  conscMiueiit  resti'ictioii  of  the  power  of 
alienating  the  fee,  unless  on  iipplicalioii  U>  and   with  the  ;i[i- 


1360  LAW    OF   WILLS.  [§  890. 

proval  of  a  court,  docs  not  create  such  a  perpetuity  as  will 
invalidate  the  charitable  g'ift.^ 

The  rule  against  perpetuities  is  not  rendered  applicable  to 
charitable  gifts  merely  because  the  fee  is  devised  for  a  chari- 
table purpose  with  no  express  limitation  to  others  hy  way  of  ex- 
ecutory devise^  on  the  failure  of  the  charitahle  jyurpose^  of  the 
reversion  or  the  possibility  of  a  reversion  which  remains.  We 
shall  see  that  an  executory  devise  over,  on  the  termination  of  a 
charity,  may  be  void  for  remoteness  of  vesting.-  Here  it  is  to 
})e  considered  whether  the  vesting  of  the  fee  simple  is  sus- 
pended because  there  remains  in  the  testator  or  his  heirs  a  pos- 
sibility of  a  reversion.  The  interest  in  the  heirs  of  the  grantor 
or  of  the  testator  who  gives  property  in  fee  to  a  charity  is  not 
an  executory  devise  after  a  fee,  the  vesting  of  which  is  post- 
poned indefinitely,  but  a  possibility  of  acquiring  a  right  of 
entry  as  soon  as  the  charitable  use  shall  cease.  The  devise  for 
the  charitable  purpose  is  a  fee  on  condition  at  the  common  law, 
which  may  endure  forever.  When  the  condition  is  broken,  the 
I'eversion  vests  at  once  in  the  heirs  of  the  testator,  and  they  may 
recover  the  inheritance  at  once  by  ejectment.  And  although 
in  most  cases  the  condition  of  the  charitable  gift  is  implied 
rather  than  express,  these  principles  are,  a  fortiori^  always  ap- 
plicable where  the  charitable  gift  is  upon  an  express  condition 
subsequent.     An  actual  entry  on  breach  of  the  condition  is  re- 

1  White  V.  Fisk,  22  Conn.  31;  Good-  N.  Y.  S.  847;  State  v.  Gerard,  2  Ired. 
rich's  Appeal,  57  Conn.  275,  18  Atl.  Eq.  (N.  C.)  210;  In  re  Lennig's  Estate, 
E.  49;  Pendleton  v.  Kinney,  65  Conn.  154  Pa.  St.  209,  25  Atl.  R.  1049;  Hill- 
232,  32  Atl.  R.  33;  State  v.  Griffith,  2  yard  v.  Miller,  10  Pa.  St.  326;  Phila- 
Del.  Ch.  392;  Abend  v.  McKendree  delphia  v.Girard,45  Pa.St.  26;  Yard's 
College,  174  111.  96,  50  N.  E.  R.  1052,  Appeal,  64  Pa.  St.  95;  Franklin's 
74  111.  App.  654;  Richmond  v.  Davis,  Adm'r  v.  Philadelphia,  13  Pa.  Co.  Ct. 
103  Ind.  449,  453;  Phillips  V.  Harrow,  R.  241;  In  re  Smith's  Estate  (Pa.. 
D3  Iowa,  92,  107,  61  N.  W.  R.  434;  1897),  37  Atl.  R.  114;  Webster  v.  Wig- 
King  V.  Parker,  9  Cush.  82;  Odell  v.  gins  (R.  L,  1897),  31  Atl.  R.  824,  826; 
Odell,  10  Allen  (Mass.),  1,  6;  Dexter  Franklin  v.  Armfield,  2  Sneed  (Tenn.), 
V.  Gardner,  7  Allen  (Mass.),  243,  246;  305;  Wood  v.  Humphreys,  12  Gratt. 
Detwiller  v.  Hartman,  37  N.  J.  Eq.  (Va.)  333;  Fadness  v.  Braunborg,  73 
854;  Mills  v.  Davison  (N.  J.,  1897),  35  Wis.  257,  41  N.  W.  R.  84;  Jones  v. 
Atl.  R.  1072;  Moore  v.  Moore.  50  N.  Habersham,  107  U.  S.  174,185;  White 
J.  Eq.  554,  25  Atl.  R.  403;  Williams  v.  Keller,  68  Fed.  R.  796,  15  C.  C.  A. 
V.  Williams.  8  N.  Y.  525;  Levy  v.  683.  C'o»f?*a,  Bem-haus  v.Watertown, 
Levy,  33  N.  Y.  97;  Bascom  v.  Albert-  94  Wis.  617,  627;  Cottman  v.  Grace, 
son,  34  N.  Y.  584;  Holmes  v.  Mead,  52  112  N.  Y  299,  19  X.  E.  R.  839. 
N.  Y.  332;  In  re  Schuyler's  Estate,  24  2  §  891. 


§  S91.]  PERPETUITIES    AXD   REMOTENESS   OF   TESTING.  1301 

<]uired  to  be  made  by  the  heirs  of  the  donor  or  of  tlie  testator. 
But  the  vesting  of  the  fee  or  the  power  of  alienating  it  is 
never  for  a  moment  suspended,  because,  until  a  breach  of  the 
condition,  it  is  in  the  charitable  trustee,  to  be  exercised  under 
judicial  direction,  while  the  right  of  entry  may  at  any  time  be 
released  by  the  heirs  of  the  testator.  After  a  breach  of  the 
condition  and  re-entry,  the  fee  is,  of  course,  absolutely  alien- 
able by  the  heirs  of  the  testator.^ 

§  891.  Devises  for  charitable  purposes  may  offend  the  rule 
■wheu  made  to  non-existent  corporation. —  It  has  been  else- 
where explained  -  that,  at  the  common  law,  it  is  necessary  to 
the  validity  of  a  grant  in  fee  that  the  grantee  named  in  it 
should  be  a  natural  person,  or  a  corporation  in  existence  at  the 
time  of  the  grant,  and  able  to  take  livery  of  seizin.  This  is  never 
necessary  in  conveyances  which  are  meant  to  operate  under 
the  statute  of  uses  or  under  that  of  wills.  A  freehold  may  be 
created  to  commence  in  futuro  in  a  person  not  in  esse  at  the 
date  of  the  feoffment  to  use,  or  at  the  death  of  the  testator  ^ 
with  or  without  a  precedent  particular  estate  to  support  it. 
This  may  be  done  as  well  where  the  cestui  que  use  or  devisee 
who  is  to  take  the  future  estate  is  a  corporation  as  Avhere  he  is 
a  natural  person.  But  in  the  one  case  as  in  the  other  it  is  abso- 
lutely necessary  that  the  unborn  corporation  shall  be  ushered 
into  existence  within  the  period  which  is  permitted  by  the  rule 
of  perpetuities  for  the  vesting  of  estates.  Hence,  it  is  a  well- 
settled  general  rule  that  a  devise  to  a  charitable  corporation 
which  is  not  in  existence  at  the  date  of  the  testator's  death  is 
valid  if  provision  is  made  that  the  corporation  inust  be  incor- 
porated within  a  life  or  lives  in  being  and  twenty-one  years 
thereafter. 

It  is  not  material  that  the  time  when  it  shall  be  incorporated 
is  left  to  the  discretion  of  the  executor  or  the  trustees,  or  that 
it  may  be  incorporated  within  an  indefinite  time,  for  example 
as  soon  as  possible,  when  the  date  on  or  before  which  it  must 

•nopkins  V.  Grimshaw,  17  S.  Ct.  v.  FrarniiiKh.im,  109  Mass.  .'503;  First 

401,   lOJ  U.  S.   342,  346;    Cowell   v.  Society  v.  R)lund.  15.j  AIuss.  171;  In 

Springs  Co.,  100  U.  S.  55:  Austin  v.  m  Rjuulell.  L.  R  38  Cli.  D.  213,  218, 

Cambri(lK*;iM)rt,  21   Pick.  (Mass.)  215;  210;  In  ro  Bowen,  (lb'J3)  3  CJi.  491, 

Gray   v.  IJiaiu-hanl.  8   Pick.  (Mass.)  494. 

28;J;  Guild  v.  Ilichards,  10  Gray,  :!09;  'i  Ante,  ^  820. 

Tobey  v.  Moore,  130  Mass.  448,  Stono  'g  777. 
80 


13G2  LAW  OF  WILLS.  [§  892. 

be  incorporated  is  within  the  limits  of  the  rule.  Where  the 
purpose  of  the  suspension  of  the  power  of  alienation  is  accu- 
mylatlon  for  a  chariiaUe  purpose,  it  has  repeatedly  been  held 
that  it  is  not  material  that  the  testator  provides  that  the 
process  of  accumulation  shall  continue  for  an  indefinite  time, 
or  for  a  period  not  measured  by  lives. ^  The  same  rule  has  also 
been  applied  where  the  primary  purpose  of  the  testator  was 
not  accumulation,  but  where  the  sole  reason  for  the  postpone- 
ment of  the  vesting  was  that  no  charitable  institution  was  in 
existence  which  could  fulfill  the  particular  charitable  intention 
of  the  testator,  or  because  he  desired  to  perpetuate  his  name  by 
the  creation  of  a  new  one. 

The  courts,  in  construing  trusts  of  this  character,  have  usu- 
ally invoked  the  definitely-settled  principle  that  the  rule  of 
perpetuities  has  no  application  to  charitable  trusts.-  But  else- 
where it  is  maintained  that  every  devise  to  a  charitable  corpo- 
ration to  be  created  in  the  future  must  take  effect  in  a  corpo- 
ration which  is  incorporated  within  a  life  or  lives  in  being  and 
twenty-one  years  thereafter.  And  in  the  state  of  New  York 
and  elsewhere,  where  the  limit  of  suspension  by  statute  is  two 
lives  in  being,  a  devise  to  a  corporation  to  be  incorporated  is 
absolutely  invalid  unless  the  incorporation  must  of  necessity 
take  place  within  the  statutory  period.' 

A  gift  in  trust  to  executors  or  trustees,  with  an  imperative 
direction  that  the  fund  shall  be  devoted  to  charitable  purposes, 
but  either  expressly  or  by  implication  providing  that  the  chari- 
table institutions  shall  be  selected  by  the  executors  or  trustees, 
is  not  generally  held  to  be  in  conflict  with  the  rule  of  perpetu- 
ities, even  though  no  time  is  fixed  by  the  will  within  which 
the  beneficiaries  must  be  selected.*  The  power  created  and 
the  discretion  conferred  upon  the  trustees  are  personal  to 
them  and  cannot  be  delegated  or  transferred  to  a  new  trustee. 
Hence  the  power  in  trust  endures  only  for  the  lives  of  the 
trustees,-^  and  the  rule  of  perpetuity  is  not  infringed. 

§  892.  Devise  over  oii  the  termination  of  a  charity  —  When 
void  for  remoteness. —  An  executory  devise  of  a  fee  to  A., 

i§902.  4  4nfe,  §832. 

2  See  ante,  %  890.  sNew  Haven  Y.  M.  Ins.  v.  City  of 

sin  re  Wood's  Estate,  55  Hun,  204,  New  Haven,  60  Conn.  32,  22  Atl.  R. 

7  N.  Y.  Supp.  836;  People  v.  Simon-  447. 

son,  55  Hun,  605,  7  N.  Y.  Supp.  861. 


§  S92.]  PEKPETUITIES    AND    EEMOTEXESS    OF    VESTING.  1363 

which  is  to  vest  in  him  offer  the  termination  of  a  prior  estate 
in  fee  which  is  given  to  charity,  is  absolutely  void  for  remote- 
ness, if  the  nature  of  the  contingent  event  which  is  to  termi- 
nate the  estate  of  the  charity  is  such  that  it  may,  by  any  possi- 
bility, not  happen  within  the  period  which,  by  the  rules  of  law, 
is  established  for  the  vesting  of  estates.  The  executory  devise 
is  a  void  conditional  limitation  for  the  reason  that,  prior  to  the 
happening  of  this  contingent  antl  uncertain  event,  no  person  is 
in  being  who  is  able  to  give  an  absolute  and  indefeasible  con- 
veyance of  the  fee  simple  of  the  property.^  And,  on  the  other 
hand,  where  a  devise  of  the  fee  is  made  to  an  individual,  with 
an  executor}"  devise  over  to  a  charity  upon  a  contingency  which 
may  or  may  not  occur  within  the  period  required  under  the 
rule  prohibiting  the  remoteness  of  vesting,  the  devise  over  is 
void  because  it  is  too  remote,  and  the  person  designated  takes 
absolutely.  So  where  the  devise  is  to  A.  in  fee,  and,  upon  a 
general  failure  of  his  issue,  to  a  charity;  or  where  it  is  to  A. 
and  his  heirs,  they  paying  an  annuity  to  a  charity,  and,  on  their 
failure  to  pay,  then  to  the  charity  in  fee;-  or  a  devise  to  per- 
sons belonging  to  particular  families,  with  a  devise  over  of  the 
fee  to  a  charity  upon  the  family  becoming  extinct,'  the  gift  to 
the  charity  is  invalid.*  A  devise  in  fee  to  one  charity,  and,  on 
a  contingency,  then  in  fee  to  another  charity,  is  valid,  though 
the  contingency  on  which  the  fee  is  to  go  over  may  not  happen 
within  the  limits  of  the  rule  against  remoteness.  The  estate  is 
all  charity.     Xo  individual  is  concerned,  as  the  fee  passes  at 

1  Hopkins  v.  Griinshaw,  IGo  U.  S.  education,  is  void  under  the  rule  of 

342,  355;  Ru-ssell  v.  Allen,  107  U.  S.  the  text.     In  re  Bowen,  3  Reports, 

163,  171;  Jones  v.   Tlabersliain,    107  529,  2  Ch.  (1893),  4G1. 

U.S.  174.  185:  McArthur  V.Scott.  113  '-J  Jackson    v.     Phillips.    14    Allen 

U.  8.  340,  381;  Brooks  v.  Belfast,  90  (Mass.),  572;  Brattle  Square  Church 

Me.  318,  324;  Theological  E<Juc.  Soc,  v.  Grant.  3  Gray  (Mass.),  142. 154;  liler- 

V.  Attorney-General,  135  Mass.  285;  ritt  v.  Bucknaiu,  77  Me.  253,  259,  2C2. 

Wells  V.  llf-ath,  10  Gray,  2.5,  20;  Odell  3 Commissioners    of  Donations   v. 

V.  Odell,  10  Allen  (Mass.),  1, 0;  Palmer  ClilTord,  1  Dru.  &  W.  240.  253. 

V.  Bank.  17  R.  I.  027,  24  Atl.  R.  109;  <  Company  of  Pewterers  v.  Christ's 

InreTyIcr.(lH!H}3Cli.  252,  Anexecu-  Hospital.  1  Vern.KJl.     See  Ai)pmlof 

tory  d(;vis«!  to  A.  aft.-r  a  gift  in  trust  Applcton,  V,\(\  Piu  St.  354,  20  Atl.  R. 

for  the  support  of  Hcho<jls,  upon  u  con-  521,  wlicrc  there  was  a  devise  to  a 

dition  that  tlie  devise  to  A.  should  charity  after  a  gift  to  four  individ- 

take  effect   iiiimediatr'ly  if  at   any  uals  for  their  joint  lives,  mid  Parker 

time  the  government  should  es(al>-  v.  Cliunhill  (Gu.,  189S),  :i()  S.  I'.  R.  fif,'. 
lish  a  general  Byutem  of  freit  iJuMic 


130J:  lav;  of  wills.  [§  893. 

once  from  one  charitable  trustee  to  the  other.  Xo  greater  re- 
striction is  placed  upon  the  power  to  alienate  by  devising  to 
two  charities  in  succession  than  by  a  devise  to  a  single  one.^ 
Thus,  where  land  was  in  the  year  1G2J:  devised  to  a  municipal 
corporation  for  charitable  purposes,  Avith  a  devise  over  to  Christ's 
nos])ital  in  default  of  a  valid  execution  of  the  trust,  it  was  held, 
two  hundred  and  twenty-four  years  later,  that  the  devise  to  the 
hospital  should  be  sustained.- 

§81)3.  The  suspension  of  the  power  of  alienation  during 
minorities. —  A  suspension  of  the  vesting  of  the  fee  during  one 
or  more  minorities  does  not  violate  the  common-law  rule  of 
perpetuities  if  the  minorities  are  of  persons  who  are  in  being 
at  the  death  of  the  testator,  or  who  will  come  into  being  during 
life  or  lives.  Thus,  a  devise  in  trust  for  the  benefit  of  A.  to 
pay  him  the  income  until  the  "youngest  of  the  children  of  the 
testator  shall  attain  the  age  of  twenty-one  years,"  if  living,  or 
if  dead  would  have  reached  that  age  had  he  lived,  suspends  the 
vesting  no  longer  than  twenty-one  years  and  a  possible  period 
of  gestation  after  the  death  of  the  testator.'  And  it  is  not 
material  how  many  minorities  are  designated  by  the  will  to 
measure  the  period  of  the  suspension  of  vesting,  for  in  any  and 
every  case  the  period  of  suspension  cannot  exceed  the  majority 
of  the  youngest  minor  who  is  living  or  en  "centre  sa  mere  at  the 
death  of  the  testator.  A  suspension  for  minorities  is  valid  at 
common  law,  even  though  the  minors  shall  not  be  in  esse  at  the 
death  of  the  testator,  if,  though  then  unborn,  they  must  neces- 
sarily be  born  within  the  life-time  of  persons  then  living  or 
within  a  possible  period  of  gestation. 

A  statute  which  by  its  terms  expressly  enacts  that  the  com- 
mon-law rule  of  perpetuities  shall  be  no  longer  in  force,  but  that 
the  vesting  of  the  fee  shall  not  be  suspended  for  a  longer  period 
than  two  lives  in  being,  no  mention  being  made  in  the  statute 
of  minority,  as  is  the  case  in  the  common-law  rule,  has  been  held 
to  permit  a  suspension  for  minorities,  but  not  for  more  than 
two.     In  such  a  limitation  the  suspension  of  the  vesting  of  the 

1  Society  for  Propagating  the  Gos-  2  Christ's  Hospital  v.  Granger,  16 

pel  V.  Attorney-General,  3  Russ.  142;  Sim.  83.  100, 1  M.  &  G.  460. 

McDonough    v.   Murtlocb,   15    How.  "  Otterback  v.  Bohrer,  87  Va.  548, 12 

(U.  S.)  367;  Storrs'  School  v.  Whitney,  S.  E.  R.  1013.    Cf.  Jordan  v.  Woodin, 

54  Conn.  342,  8  AtL  R  141.  93  Iowa,  453,  61  X.  W.  R.  948. 


§  894.]  PERPETUITIES    A^^)   KEMOTEXESS    OF    VESTING.  1305 

fee  cannot  outlast  the  lives  of  those  persons  whose  minorities 
are  taken,  and  it  may  possibly  terminate  sooner,  that  is,  on  their 
attaining  majority.  The  suspension  cannot  possibly  be  for  a 
longer  period  than  during  the  lives  of  the  two  minors,  and  it 
may  ultimately  be  for  a  much  shorter  jieriod  in  case  they  attain 
majority  and  live  for  man}^  years  thereafter. 

In  the  state  of  Xew  York,  where  the  limit  of  suspension  is 
two  lives  in  being,  by  the  early  cases  a  minority  of  a  minor 
alive  at  the  death  of  the  testator  has  been  held  to  be  equivalent 
to  a  life  in  being,  and  suspensions  for  two  minorities,  though  no 
more,  have  been  sustained.^  Thus,  a  direction  to  trustees  to  hold 
the  property  of  the  testator  in  trust  until  the  "  youngest  child 
of  the  testator  "  should  attain  the  age  of  twenty-one,  and  then 
to  divide  it  among  a  class  of  beneficiaries,  was  held  not  to  cause 
an  invalid  suspension  of  the  vesting  of  the  fee.-  Indeed  it 
seemed  to  be  well  established  in  that  state  down  to  a  recent 
date,  that  a  suspension  of  alienation  until  the  majority  of  the 
yovngest  child  of  the  testator  was  valid,  being  regarded  at  the 
utmost  only  as  a  suspension  for  the  life  of  a  person  in  being, 
i.  <?.,  the  youngest  child,  and  not  for  a  gross  term  of  yeai-s  not 
measured  by  a  life  or  lives  in  being.'  But  a  contrary  rule  has 
recently  been  established.  In  a  case  where  property  was  placed 
in  a  trust  for  the  benefit  of  the  wife  of  the  testator  "  until  the 
majorit}'  of  the  youngest  child  now  living  or  who  would  arrive 
at  that  age  if  living^''  the  court  held  that  the  trust  was  invalid 
as  suspending  alienation  for  a  term  of  years,  and  not  for  a 
jjeriod  measured*  by  a  life  or  lives  in  being.'^ 

§  804.  The  separation  of  gifts  to  classes  not  permitted. — 
The  fact  that  some  of  the  members  of  a  class  to  which  an 

1  Hawlfv  V.  .James,  5  Pai^e  (N.  Y.),  Stehlin.  23  N.  Y.  Supp.  40,  67  Ilun. 
31*:!;  Tlionipson  v.  Clernlenninf?,  1  110,  and  Horndorf  v.  Ilormlorf,  34  N. 
•Sandf.  C'li.  <N.  Y.)  387;  Scott  v.  Mo    Y.  Supp.  r,GO.  13  Mist-.  R.  343. 

iiell,  1  R«.*df.  (N.  Y.)  441;  .Jciiiiinf^s  v.  *  A  disjmsition  involviiif^  the  exer- 

Jeiinin;?s,  7  X.  Y.  547;   lioynton  v.  cise  of  a  jMjwer  of  s;ile  on  the  attaiii- 

l{oyt,  1  I)tMiio(N'.  Y.),  53.   And  so.  too,  ment  of  majority  by  one  of  three 

iu  Miniieriuta.    Simpw^n  v.  Cook,  24  persons    who   took    subject   to   tlie 

Minn.  IW,  1  Am.  Prob.  R.  27,  32.  iM)\ver  was  sustained.  In  re  Christie, 

2  Levy  V.  Hart.  5  Harb.  (N.  Y.)  248;  55>  llun.  153.  13  N.  Y.  S.  202.  See  also 
and  see  also  McCiowan  v.  McCiowan,  Walsh  v.  Waldron,  17  N.  Y.  S.  829,  03 
2  Duer  (N.  Y.),  57,  where  a  division  Hun,  315. 

was  to  bn  made  wlien  the  «ddest  of        ^  Haynes  v.  Sherman,  117  N.  Y.  433, 
W'ven  <-iiiiiln'n  attained  his  inajorily.     2".'  N.  V..  K.  '.(38,  51  IIuu,  585,  4  N.  Y.  S. 
'boe  the  recent  cai»c»  of  Stehlin  v.     413. 


136G  LAW   OF   WILLS.  [§  894. 

executory  devise  is  given  which  is  void  under  the  rule  are  in 
beincr  at  the  death  of  the  testator  or  have  come  into  beinir  dur- 
ing  the  period  which  is  at  the  basis  of  the  rule,  while  others  aro 
not  or  have  not  come  into  being,  does  not  always  prevent  the  fail- 
ure of  the  whole  limitation  to  the  class.  Thus,  for  example,  we 
will  take  a  limitation  which  occurred  in  an  English  case  where 
personal  property  was  bequeathed  to  A.  for  life,  and  o/ter  his 
death  to  his  children  who  shall  attain  the  age  of  twenty-five 
years,  and  if  A.  shall  die  leaving  no  children  him  surviving,  or 
if  he  shall  leave  any  that  shall  all  die  before  they  attain  the  age 
of  twenty-five,  then  to  the  Irothers  and  sisters  of  A.  in  fee. 

The  executory  devise  to  brothers  and  sisters  of  A.  is  to  a 
class  which  may  not  be  ascertainable  until  at  least  twenty-five 
years  after  the  death  of  A.  It  will  consist  of  all  the  brothers 
and  sisters  of  A.,  who  must,  of  course,  be  born  in  his  life  or 
within  twenty-five  years  thereafter.  It  cannot  be  known,  there- 
fore, until  at  least  twenty-five  years  after  the  death  of  A., 
whether  the  fee  simple  will  vest  and  be  alienable  in  the  children 
or  in  the  brothers  and  sisters  of  A.  The  latter  event  will  hap- 
pen if  no  child  of  A.  survives  his  twenty-fifth  birthday.  The 
membership  of  the  class  ''^Irothers  and  sisters  "  cannot  be  ascer- 
tained until  that  time,  and,  though  it  may  happen  that  at  the 
death  of  the  testator  there  may  be  several  members  of  that 
class  alive  who  may  take  if  they  survive,  there  may  le  others 
born  within  the  period  above  mentioned  and  beyond  the  limits 
of  the  rule,  for  the  rule  of  perpetuities  has  regard  to  what 
Qiiay  2>ossihly  Juqrpen,  and  not  to  events  which  actually  happen. 
To  split  up  the  class,  which  is  indivisible  and  composite,  be- 
cause some  members  are  or  have  come  into  existence  during 
the  period  allowed  by  the  law,  though  others  do  not,  and  to 
give  to  the  former  sub-class  their  shares  while  depriving  the 
others  of  their  benefit,  is  in  no  case  what  the  testator  intended 
to  do  by  such  a  disposition  of  his  property.  To  do  this  would 
be  in  effect  to  confer  particular  bequests  upon  one  or  more 
legatees  as  individuals,  that  is,  upon  those  members  of  the  class, 
"  brothers  and  sisters,"  who  may  have  come  into  being  within 
the  period  permitted  by  the  rule  against  perpetuities.^ 

^  Leake  v,  Eobinson,  2  Mer.  363.  In  tion  are  not  made  to  individuals,  but 
discussing  this  case  Sir  W.  Grant,  to  classes,  and  what  I  have  to  de- 
;^L  R.,  said:  "The  bequests  in  ques-    termine   is,  whether  the  class  can 


§  894.]  PEKPETUITIES    AND    REMOTENESS    OF    VESTING.  13GT 

The  fact  that  the  devise  to  a  class  which  is  too  remote  is 
coupled  with  a  devise  to  an  individual  named,  which  is  to  vest 
in  him  only  if  he  survive,  is  not  material.  His  devise  fails  with 
the  remote  gift  to  the  class,  though  he  may  survive  until  the 
period  named,  for  it  is  impossible  to  separate  the  whole  fund 
into  shares  and  to  ascertain  how  much  the  individual  named 
would  take,  where  he  is  to  take  as  a  tenant  in  common  with 
the  members  of  a  class  which  is  too  remote.^ 

If,  however,  the  valid  and  invalid  provisions  contained  in 
the  same  will  are  each  complete  in  themselves,  and  independ- 
ent of  the  others,  so  that  they  may  be  separated  without  injus- 
tice to  any  person,  and  it  appears  that  the  testator  intended 
they  should  be  separated,  this  intention  should  be  respected. 
The  provision  or  limitation  which  transgresses  the  rule  of  per- 
petuities may  be  cut  off,  while  that  wliich  does  not  offend  the 
rule  may  be  supported.^  So  where  the  devise  was  a  certain 
specific  amount  to  each  child  that  should  be  born  to  any  son 
of  any  brother  of  the  testator,  it  was  supported  as  to  all  chil- 
dren of  the  sons  of  the  brothers  of  the  testator  who  were  in 
being  at  the  death  of  the  testator,  though  defeated  as  to  those 
subsequently  to  be  born,  and  who,  as  a  class,  would  be  too  re- 
mote.'    And  though  a  limitation  made  by  a  residuary  clause  is 

take.  I  must  make  a  new  will  for  the  then  to  all  A, 's  children  in  fee.  As 
testator  if  I  split  into  portions  his  the  provision  relating  to  final  dis- 
general  bequest  to  the  class  and  say  tribution  was  void,  the  whole  trust 
tliat,  because  the  rule  of  law  forbids  failed,  and  the  gifts  of  the  annuities 
his  intention  from  operating  in  favor  to  the  children  of  A.  wlio  were  living 
of  the  whole  class,  I  will  make  his  at  the  death  of  the  testator  also 
bequests  what  he  never  intended  failed.-  Lawrence  v.  Smith,  1G3  IlL 
them  to  be.  wi^.,  a  series  of  particular  149,  45  N.  E.  R.  259.  See  also  In  re 
V)equests  to  mdividuals,  or,  what  he  Whitten,  62  Law  Times,  391. 
has  as  little  in  his  contemplation,  dis-  i  Porter  v.  Fox.  6  Sim.  485.  That  a 
tinct  bequests,  in  each  instance,  to  gift  cannot  be  split  up  into  several 
different  classes,  namely,  to  grand-  gifts  to  take  efftu-t  on  separate  con- 
children  living  at  his  deatli,  and  to  tingentevonts.some  witiiin  and  some 
Krandcliildren  born  after  his  death."  be}'ond  the  period  of  the  rule,  see 
In  a  rccf-nt  Illinois  case  will  be  found  In  re  Bence.  04  Law  Times,  .'382,  3  Ch. 
a  good  illastration  of  the  rule  of  the  (1891),  242:  Tost  v.  Roiirbuch,  142  IlL 
text  The  testator  created  a  trust  to  600,  :{2  N.  E.  II.  087. 
j)ay  A.  a  life  annuity,  and  on  A.'s  2  Kennedy  v.  Hoy,  105  N.  Y.  524, 11 
•Iwithtopayannuitiesto  A.'schildrcn  N.  K.  II.  :m):  Uiidcuwood  v.  Curtis, 
until  tliey  severally  attained  tlie  ago  127  N.  Y.  52:{,  28  N.  E.  It  5H5. 
of  twenty-five,  and  when  tin*  young-  3  Storrs  v.  lienbow,  U  D.  M.  &  G.  390, 
e.st  attained  the  ago  of  twenty-fivo 


13CS  ■  LAW    OF    WILT.S.  [§  895. 

Toid  because  in  violation  of  the  rule  of  perpetuities,  specific 
legacies  to  the  same  legatee  ought  to  be  supported.^  So,  where 
property  is  limited  in  a  valid  trust  for  life,  with  a  remainder 
in  foe  over,  and  the  remainder  is  void  because  it  infringes  the 
rule  of  perpetuities,  the  gift  for  life,  if  it  is  severable,  will  stand, 
though  the  limitations  over  may  fail  for  remoteness  of  vesting, 
and  the  testator  may  die  intestate  as  to  the  fee  comprised  in 
the  executory  limitations.- 

§  895.  The  cireiiinstances  under  which  class  gifts  may  he 
separated. —  There  have  been  some  cases  where  the  courts  have 
held  that  it  was  allowable  to  separate  a  contingent  provision 
for  a  future  class,  where  some  of  the  members  of  the  class  have 
come  or  must  come  into  being  beyond  the  legal  period,  and  to 
sustain  the  provisions  for  the  class  as  to  those  members  of  it 
who  are  actually  in.  being  within  the  rule  of  perpetuities,  while 
lettinfj  it  fail  as  to  those  who  are  not. 

Thus,  where  the  testator  devised  land  to  A.  for  his  life,  he 
beins:  alive  at  the  death  of  the  testator,  remainder  to  his  chil- 
dren  for  their  lives,  and  remainder  in  fee  to  their  children;  and 
A.  left  several  children  surviving,  some  of  whom  were  born 
hefore,  and  some  after,  the  death  of  the  testator,  the  court  sepa- 
rated the  limitation  to  the  children  of  A.,  and  held  that  the 
shares  of  the  children  who  were  born  he/ore  the  death  of  the 
testator  should  go  to  their  children  in  fee  on  their  death.  But 
the  devise  of  the  remainder  failed  as  to  the  grandchildren  of  A. 
whose  parents  were  born  after  the  death  of  the  testator.' 

1  Lawrence  v.  Smith,  163  IlL  149,  45  547,  548;  Manice  v.  Manice,  43  N.  Y. 
N.  E.  R.  259.  303,  384;  Van  Scliuyver  v.  Mulford, 

2  Morns  v.  Bolles,  31  Atl.  R  538,  65  59  N.  Y.  426,  432;  Kennedy  v.  Hoy, 
Conn.  45:  Ketcham  v.  Corse.  31  Atl.  105  N.  Y.  134, 137, 138;  Underwood  v. 
R.  486, 65  Conn.  85:  Leake  v.  Watson,  Curtis,  127  N.  Y.  523,  541:  Brown  v. 
CO  Conn.  498,  31  Atl.  R.  1075;  Marion  Ricbter,  76  Hun,  469,  27  N.  Y.  Supp. 
V.  Williams,  20  D.  C.  20;  Ingraham  1094;  Law  v.  Maxy,  13  N.  Y.  Supp. 
V.  Ingraham,  169  IlL  432,  48  N.  E.  R.  366;  Haynes  v.  Sherman,  51  Hun,  685; 
461;  Bugbee  v.  Sargent,  23  Me.  269;  Schermerhorn  v.  Cotting,  131  N,  Y. 
Dulany  v.  Middleton,  72  Md.  67,  19  48,  29  N.  E.  R.  980;  Allen  v,  Allen,  149 
Atl.  R.  146:  Deane  v.  Littlefield,  1  N.  Y.  280,  287;  Armstrong  v.  Doug- 
Pick.  (Mass.)  239,  243;  Holman  v.  las,  89  Tenn,  219,  14  S.  W.  R.  604; 
Perry,  4  Met.  (Mass.)  492,  497;  St.  Saxton  v.  Webber,  83  Wis.  617,  53  N, 
Paul's  Church  v.  Attorney-General  W.  R.  905. 

of  Massachusetts,  164  Mass.  188,  195;  sCattlin  v.  Brown,  11  Hare,  373, 
Dean  v.  Mumford,  102  Mich.'  510;  382;  Griffiths  v.  Pownall,  13  Sim.  393; 
Harrison  v.  Harrison,  36  N.  Y.  543,     Knaping  v.  Tomlinson,  34  L.  J.  CIl. 


§  S95.]  PERPETUITIES    AND    KEMOTENESS    OF    VESTING.  1369 

Testamentary  executory  provisions  for  unborn  classes  may 
also  be  separated,  and  the  part  which  vests  within  the  legal 
period  may  be  sustained,  though  the  balance  is  permitted  to 
fail,  where,  by  the  terms  of  the  limitation,  a  class  of  devisees 
is  to  take  by  substitution  a  contingent  interest  in  the  share  of 
any  member  of  another  primary  and  original  class  who  dies 
before  the  vesting  in  that  class.  An  example  of  this  would  be 
an  estate  in  A.  for  life,  he  being  a  living  person,  remainder  to 
his  children  in  fee  when  they  severally  attain  the  age  of  twenty- 
one,  and  if  any  child  shall  die  in  his  minority,  then  to  his  issue.^ 
The  remainder  in  fee  by  substitution  to  the  issue  of  a  deceased 
child  is  valid  so  far  as  the  shares  of  children  in  being  at  the 
death  of  the  testator  are  concerned,  for  the  remainder  is  cer- 
tain to  vest,  if  at  all,  during  A.'s  life,  or  within  twenty-one 
years  thereafter.  It  vests  in  the  children  of  A.  if  they  attain 
majority,  or  in  their  issue  if  they  are  dead.  But  the  remainder 
in  fee  to  issue  is  void  as  to  the  issue  of  the  children  of  A.  who 
are  born  after  the  death  of  the  testator,  for  such  children  are 
not  in  being  at  the  death  of  the  testator,  and  consequently  the 
fee  cannot  go  in  their  issue  until  both  they  who  are  unborn  at 
the  testator's  death,  and  their  parent,  A.,  are  deceased,  and 
also  after  a  majority,  which  is  not  within  the  period.  Here, 
then,  are  two  classes,  one  of  children  and  one  of  grandchildren. 
uUl  the  children  will  certainly  come  into  being  during  A.'s  life, 
and  possibly  some  of  the  grandchildren.  But  some  of  the  grand- 
children may  not,  for  their  parent,  the  child  of  A.,  may  be  en 
ventre  sa  mere  at  A.'s  death.  But  when  the  number  of  A.V 
children  is  ascertained  and  fixed  by  his  death,  we  have  found 
the  number  of  shares  and  also  how  many  stocks  into  which  the 

3,7.     Tlie  distinction  between  tliese  gent  remainder  to  their  children),  or, 

cases  and  that  of  Leake  v.  Rohin.sou  if  dead,  to  tlieir  cliildren  in  fee.  while 

is  that  in  these  cases  so  soon  as  it  can  the  other  shares  meant  for  the  issue 

l»e  definitely  as(.'ert;iined  liow  many  of  tlie  children  who  are  afterwards 

Burvivin;^  children  of  A.  there  are,  born,   not   vestiTic:  until   the   sulise- 

•which  of  course  is  at  his  death,  no  (juently  born  chiMren are  tliemselves 

iiuitter  when  they  are  Iwrn,  the  iiroi>-  deceased,  must  of  necessity  bo  void, 

erty  can  Ije  divided  into  as  many  In  Leake  v.  Robinson  the  cla.HS  was 

shares  as  there  are  surviving  chil-  not  thus  divisible,  and  its  member- 

dren.     The  shares  of  those  <-hildren  shij)  was  only  to  be  ascertained  at 

of  ^\.  born  before,  the  death  of  the  u  date  which  wius  absolutely  too  ro- 

t«'stator   can    be   then   delivered    to  mole 

tin-Ill.  if  alive,  for  life  (with  coritin-  'See  avli\  ^j^  WTtW,  855. 


1370  LAW    OF   WILLS.  [§  890. 

testator  meant  his  property  to  be  dividccl ;  and,  this  fact  hav- 
ing been  ascertained,  the  issue  that  may  proceed  from  each 
member  of  the  original  chiss  forms  a  secondary  and  substitu- 
tionary class  which  is  distinct  and  separate  from  the  issue  of 
any  and  every  other  member  of  the  original  class. 

But  on  the  other  hand,  where,  in  a  similar  limitation  to  that 
above  mentioned,  it  appears  that  the  children  and  the  grand- 
children form  together  ons  composite  and  original  class,  the 
membership  of  which  cannot  be  ascertained  within  the  legal 
period,  the  whole  gift  fails,  though  some  of  those  who  make  up 
the  membership  of  the  class  have  been  born  before  the  death 
of  the  testator.  If  some  of  the  members  of  the  class  are  to  be 
the  unborn  children  of  persons  not  in  being  at  the  death  of  the 
testator,  and  the  share  of  each  and  any  member  cannot  be  as- 
certained until  all  these  persons  are  in  being,  the  whole  limita- 
tion is  so  permeated  with  remoteness  that  it  must  be  cut  off 
altogether.  Thus,  a  devise  of  a  contingent  remainder  was  to 
the  children  of  a  life  tenant  (A.)  living  at  his  death,  and  to  the 
descendants  of  all  his  children  who  are  then  deceased,  with  a 
devise  over,  if  no  children  or  descendants  of  A.  shall  attain  their 
majority,  to  the  children  of  B.  living  at  his  death  and  the  de- 
scendants of  those  deceased.  The  contingent  remainder  to  the 
descendants  of  the  children  of  A.  was  to  such  only  as  were  liv- 
ing at  A.'s  death,  and  they  took  by  substitution  the  shares  of 
their  parents  as  separate  stocks.^  So  the  rule  of  perpetuities 
is  not  in  any  respect  infringed  by  a  devise  in  trust  for  a  child 
of  the  testator  for  life,  and  at  his  death  to  be  divided  among 
his  children  ^^then"  living,  and  the  issue  of  any  deceased  child. 
The  living  children  of  the  life  tenant  take  as  one  class,  and  the 
descendants  of  his  deceased  children  take  as  another.  There 
are  thus  two  separate  classes,  both  of  which  are  ascertainabki 
within  the  life  of  A.^ 

§  806.  The  effect  of  the  invalidity  of  a  devise  on  the  next 
expectant  limitation  following  it. —  All  future  contingent  lim- 
itations which  are  to  vest  upon  the  termination  of  a  prior  lim- 
itation which  is  void  because  it  is  in  violation  of  the  rule  of 
perpetuity  are  also  void,  and  are  not  accelerated  because  the 

1  Terrell  v.  Reeves  (Ala.,  1898),  16  2in  re  Siddairs  Estate,  180  Pa.  St. 
&  R  54.    See  ante,  §§  353-355.  127,  36  Atl.  R.  570. 


^  SOC]  PERPETUITIES    AXD    REMOTENESS    OF   VESTING.  1371 

prior  estate  is  invalid.^  If  the  later  interest  depends  for  its 
vesting  upon  an  event  which  puts  an  end  to  the  former  estate, 
both  are  void.  The  reason  is  obvious.  Thus,  if  the  contingent 
event,  on  the  Tiappening  of  which  an  interest  which  up  to  that 
time  has  been  contingent  is  to  become  vested  in  fee  in  class  A., 
is  the  same  event  on  the  non-happening  of  which  the  same  prop- 
erty is  to  vest  in  fee  in  class  B.,  both  must  necessarily  be  valid 
or  neither.  For  the  non-happening  of  the  event  is,  so  far  as 
class  B.  is  concerned,  as  much  a  contingent  and  doubtful  event 
as  its  happening  is  to  class  A.  If  it  happens,  the  fee  vests  in 
one  class  of  persons.  If  it  does  not,  the  fee  vests  in  another. 
Both  classes  are  equally  beyond  the  period  mentioned  by  the 
rule  and  both  devises  arc  void. 

So,  too,  the  testator  undoubtedly  meant  to  give  to  both  classes, 
and  he  cannot  be  assumed  to  have  meant  that  a  contingent  and 
indefinite  class  B.  shall  take  a  vested  fee  on  the  happening  of 
an  event  which  renders  his  disposition  in  favor  of  class  A.  in- 
valid. Thus,  where  personal  property  was  to  go  for  life  to  A., 
and  on  his  death  to  his  children,  to  vest  in  them  when  they 
shall  attain  the  age  of  twenty-seven,  and  if  no  such  children, 
then  over,^  or  where  property  was  given  to  the  first  son  of  A. 
on  his  becoming  a  clergyman,  which  he  could  not  become  until 
he  was  twenty-four  years  of  age,  but  if  no  such  son  then  over, 
and  the  fee  never  vested  in  the  first  devisee  because  the  con- 
tingency never  happened,  it  could  not  vest  in  the  alternative 
devisee.' 

If,  however,  the  ultimate  limitation  which  is  to  vest  the  fee 
depends  not  upon  a  single  event,  but  upon  an  alternative  contin- 

1  This  rule  does  not  apply  to  future  alive,  have  been  capable  of  enjoying 
vested  estates  coming  after  void  lim-  the  estate,  and  that  he  did  not  intentl 
itations.     See  §  878.  that  the  estate  sliould  wait  for  per- 

2  Cambridge  v.  llous,  8  Ves.  12,  25  sons  to  take  in  a  given  event,  where 
Beav.  409.  the  person  to  take  itliat  is,  to  take  in 

*In  Monypenny  V.  Bering,  2  D.  M.  the  interim)  was  actually  in  exist- 

&,  (}.  14"),  on  page  182,  the  court  s;iid  enco,  but  could  not  take.   This  shows 

a  limitation  was  invalid,  "not   be-  that  where  there  are  gifts  over  wliich 

cause  it  was  within  tlie  line  of  per-  are  void  for  perpetuity,  and  there  is 

petuity,  but  expressly  on  the  ground  asubsetiuont  and  independent  clause 

that  the  limitation  over  was  never  on  a  gift  over  which  is  within  the 

intended  by  the  testator  to  take  ef-  line  of  perpetuities,  efbift  caiinot  be 

feet,  unless  the  persons  wliom  lie  in-  given  to  such  a  clause  urdi'ss  it  will 

tendrul   to  take   UJider  the  previous  ddvctail  in  and  accord  with  jirevious 

limitation  would,   if  tln-y   had    beiiu  liiiiitatioiis  wliidi  are  vabd." 


LAW    OK    WILLS. 


[§  896. 


gencY,  or  upon  two  contingencies,  the  rule  is  otherwise.  If  the 
vesting  of  the  estate  over  depends  upon  the  happening  of  either 
of  two  contingent  events,  one  of  which  is  certainly  within  the 
period  of  life  or  lives  in  being,  though  the  other  may  not  be; 
and  the  event  which  is  within  the  period  happens,  while  that 
which  is  beyond  the  period  does  not  happen,  the  validity  of 
the  limitation  will  be  determined  by  the  event  w4iich  has  hap- 
pened, and  not  by  that  which  has  not.  Thus,  where  there  is 
a  limitation  in  fee  to  a  class  of  persons,  including  the  unborn 
grandchildren  of  a  life  tenant,  which  is  void,  with  a  devise 
over  of  a  vested  remainder  to  A.,  in  case  the  grandparent,  who  is 
living  at  the  death  of  the  testator,  dies  leaving  no  issue  surviv- 
ing him  at  his  death,  and  the  latter  event  happens,  the  devise 
to  A.  is  valid.  For  the  same  reason  a  contingent  remainder 
in  fee  to  a  class  in  the  above  example,  upon  the  death  of  the 
grandparent,  the  life  tenant,  without  issue  living  at  his  death, 
would  also  be  valid,  if  it  should  so  happen,  for  the  devise  to 
the  class  is  bound  to  vest  within  the  legal  period,  though  a  pro- 
vision for  unborn  issue  of  the  life  tenant  coupled  with  it  might 
fail  toirether.^ 


1 "  But  if  the  testator  distinctly 
makes  his  gift  over  to  depend  upon 
what  sometimes  is  called  an  alterna- 
tive contingency,  or  upon  either  of 
two  contingencies,  one  of  which  may 
be  too  remote  and  the  other  cannot  be, 
its  validity  depends  upon  the  event; 
or,  in  other  words,  if  he  gives  the 
estate  over  on  one  contingency  which 
must  happen,  if  at  all,  within  the 
limit  of  the  rule,  and  that  contin- 
gency does  happen,  the  validity  of 
the  distinct  gift  over  in  that  event 
•will  not  be  affected  by  the  consider- 
ation that  upon  a  different  contin- 
gency, which  might  or  might  not 
happen  within  the  lawful  limit,  he 
makes  a  dispensation  of  his  estate 
which  would  be  void  for  remoteness. 
The  authorities  upon  this  point  are 
conclusive."  Jackson  v.  Phillips,  14 
Allen  (Mass.),  572.  The  court  cites 
Longhead  v.  Phelps.  3  W.  Bl.  704; 
Beard  v.  Westcott,  5  Taunt.  393,  395, 
5  B.  &  Aid.  801,  809,  813,  814;  Minter 


V.  Wraith,  13  Sim.  53;  Evers  v. 
Challis,  7  H.  L.  Cas.  531.  And  see 
also  Lewis  ou  Perpetuities,  oh.  31; 
Goring  v.  Howard,  16  Sim.  395;  In 
re  Weinbrenner's  Estate,  34  Atl.  R. 
314,  173  Pa.  St.  440.  Where  two  con- 
tingent remainders  are  limited  as 
substitutes  or  alternatives, —  one  to 
take  effect  if  the  other  does  not, — the 
fact  tliat  the  contingency  on  which 
one  is  to  take  effect  is  too  remote  does 
not  affect  the  validity  of  the  otlier. 
Walker's  Adm'r  v.  Lewis,  90  Va.  578, 
19  S.  E.  R.  358.  A  devise  to  trust- 
ees for  the  children  of  a  person  in 
being,  should  he  have  any,  and,  in 
case  he  should  have  none,  to  other 
persons  named,  is  a  devise  upon  al- 
ternative-contingencies; and,  if  the 
first  contingency  never  happens,  the 
second  disposition  will  take  effect, 
though  the  first  devise  may  have 
been  void  as  creating  a  perpetuity. 
Perkins  v.  Fisher,  59  Fed.  R.  801. 


§§  SOT,  SOS.]     TEKPETUITIES  AND  KEilOTEKESS  OF   YESTI^IG.        1G73 

§807.  The  statutory  regulations  of  tlie  law  of  perpetui- 
ties in  the  United  States. —  The  rule  of  the  common.  la\y,  by 
the  operation  of  which  the  suspension  of  the  power  of  alienat- 
ing the  absolute  interest  in  property  is  restrained  to  life  or  lives 
in  being  and  twenty-one  years  thereafter,  prevails  throughout 
the  United  States  where  it  has  not  been  expressly  repealed  or 
modified  by  statute.^ 

In  the  states  of  Iowa,-  Georgia,^  Kentucky,*  North  Dakota,'^ 
Pennsylvania,^  California,^  Wisconsin,^  Michigan,*  and  perhaps 
in  several  other  states  which  have  escaped  the  investigation  of 
the  writer,  the  common-law  rule  has  been  expressly  confirmed 
by  statute.  In  the  state  of  New  York  and  in  one  or  two  other 
states,  according  to  existing  statutes,  the  vesting  of  the  fee  can- 
not be  suspended  longer  than  during  two  lives  in  being  at  the 
creation  of  the  estate  or  at  the  death  of  the  testator.  And  no 
term  of  years  Avhatever  is  permitted  to  be  added  to  this  limited 
period.^"  If  the  statute  does  not  expressly  or  by  necessary  im- 
plication refer  to  personal  property,  the  rule  of  the  common  law 
prevails  as  to  that." 

§  898.  The  rule  of  perpetuities  in  Connecticut. —  The  stat- 
ute in  Connecticut  provides  that  "  no  estate  shall  be  given  by 
deed  or  will  to  any  persons  but  such  as  are  in  being  at  tlie  time 
of  the  delivery  of  the  deed,  or  at  the  death  of  the  testator,  or 
to  their  immediate  issue." '-  A  trust  for  A.  and  his  family  is 
not  invalid  under  this  statute,  as  it  can  endure  only  so  long  as 
A.  is  the  head  of  the  family,  that  is  to  say,  onl}^  during  his  life- 

■  1  In  re  Hendy's  Estate,  118  Cal.G36,  3  civil    Code,   §3112;    Code  1873, 

50  Pac.  R.  753:  Chilcott  v.  Hart,  23  §2267. 

Colo.  40,  45  Pac.  R  391;  Madison  v.  *  Gen.  Stats.,  ch.  03.  art.  1,  §  27. 

Larmon   (111.,  WJS),  48  N.  E.  R.  550,  ^Comp.  Laws,  i;  2717. 

Hale  V.  Hale,  125  111.  399,  17  N.  E.  R.  «  Act  April  18,  1853. 

470;  Lawrence  v.  Smith,  163  111.  149,  'Code,  f-t^  715,  716. 

15  N.-  E.  li.  259;  Rhoad.s  v.  Rhoads,  43  »  Rev.  Stats,  j^  2039. 

111.  239;  Sla.le  v.  Patten,  08  Mc  480,  Nlow.  Ann.  Stsits.,  §  5531. 

482;  Ilfwea  v.  .Iacol)s.  98  Mass.  05.  07;  lo  Rev.  Stats,  of  New  York  (7th  ed.), 

LoveririK  v.  W()rtliinKt<»n,  100  Mass.  p.  2179,  i;  15. 

so,  88;  Pratt  v.  Alger,  130  Mass.  550,  n  In  re  Tower's  Estate.  49  Minn.  371. 

551;    "Wood bridge    v.    Winslow,    170  52  N.  W.  R.  27;   iKulge  v.  Williams, 

]yias.s.  :i90.  19  N.  E.  It.  738;  Brown  v.  40  Wis.  70.  95.  50  N.  W.  R.  1103;  Web- 

P.n.wn,  2  Pickle  (Teuu.),  277,  6  S.  W.  «ter  v.  Jlorris,  00  Wis.  300,  382. 

R  8<59.  la  Gon.  Stuta.,  g  2U5i 
-  Code,  8  1920. 


1374:  LAW    OF    WILLS.  [§  890. 

tinie.^  A  testamentary  provision  for  five  cliilclren  of  the  testa- 
tor by  name  for  life,  and  on  the  death  of  the  survivor  of  such 
ehihh-en  to  be  divided  among  the  surviving  grandchildren  and 
their  heirs,  is  invalid.  The  remainder  does  not  vest  in  the  im- 
mediate issue  of  the  children  at  the  death  of  the  testator,  but 
in  the  grandchildren  of  the  testator  who  are  living  at  the  death 
of  the  last  surviving  child,  and  in  the  issue  of  those  then  dead 
as  purchasers." 

And  it  seems  that  in  the  state  of  Connecticut  the  general  rule 
is,  under  this  statute,  that  any  future  estate  which  is  to  vest  in 
a  class,  the  membership  of  which  is  to  be  determined  at  the 
termination  of  one  or  more  precedent  life  estates,  is  void  as  a 
perpetuity,  though  the  class  consists  of  the  immediate  issue  or 
descendants  of  some  or  all  of  the  life  tenants.'  Every  contin- 
gent remainder,  therefore,  to  the  children  of  a  life  tenant  as  a 
class,  where  the  children  of  a  deceased  member  of  the  class  are 
to  take  their  parent's  share,  is  void,'*  as  the  grandchildren  take 
as  purchasers  their  parent's  share,  and  not  by  inheritance,  and 
some  of  them  may  possibly  not  be  in  being  at  the  death  of  the 
testator.  So,  too,  a  devise  of  a  future  estate  to  the  heirs  of  the 
survivor  of  a  class,  to  vest  in  them  after  a  prior  life  estate,  is 
also  void.'^ 

§  899.  Cases  illustrating  the  New  York  rule  of  perpetui- 
ties.—  In  the  state  of  New  York  the  limit  of  the  rule  of  per- 
petuities is  two  lives  in  being,  and  no  more.  The  following 
illustrations,  selected  out  of  the  very  many  cases  which  have 
been  determined  in  that  state,  will  serve  to  show  the  attitude 
of  the  courts  of  that  state  upon  this  point: 

A  devise  in  trust  for  the  support  of  the  children  of  the  tes- 
tator during  the  lives  of  the  two  youngest  children ;  ^  or  to  sup- 
port A.  and  B.  for  their  joint  lives,  and,  on  the  death  of  the 
survivor,  to  vest  in  others ;  ^  or  to  support  the  widow  and  chil- 

1  St.  John  V.  Dann,  66  Conn.  401,  34  5 Ketchura  v.  Corse,  31  Atl.  R  486, 
Atl.  R.  110.  65  Conn.  85.     The  provisions  of  the 

2  Morris  v.  BoUes,  65  Conn.  45,  31  Ohio  statute  are  identical  with  those 
AtL  R  538.  of  Connecticut  (Act  Dec.  17,  1811). 

8  Johnson  v.  Webber,  65  Conn.  501.  Phillips  v.  Herron  (Ohio,  1898),  45  N. 

23  AtL  R  506;  Beers  v.  Narramore,  E.  R.  720. 

61  Conn.  13,  22  AtL  R  1061.  «  Oilman  v.  Reddington,  24  N.  Y.  9. 

*  Landers  v.  Dell,  61  Conn.  189,  23  ^Onderdonk  v.  Onderdonk,  5  N.  Y. 

AtL  R  1083.  Supp.  242,  52  Hun,  614. 


§  899.]  PERPETUITIES    AND    REMOTENESS    OF    VESTING.  1375 

dren  of  the  testator  during-  the  life  of  the  widow  ;^  or  in  trust 
for  the  widoAv  of  the  testator  for  Iter  life,  and,  on  her  death, 
to  be  divided  into  three  separate  life  estates ;  -  to  pay  income 
to  A.,  B.  and  C.  during  their  lives,  and,  if  A.  survive  them,  to 
him  in  fee,  but  if  he  die  before  C.  and  B.,  then  to  such  persons 
as  he  may  by  will  appoint;  ^  to  pay  the  income  of  a  fund  to  A. 
and  B.  for  seven  years,  and  at  the  end  of  that  time  the  princi- 
pal to  go  to  the  survivor  of  A.  and  B.,  but  if  Ijoth  be  dead,  then 
to  the  heirs  of  C. ;  *  to  pay  income  to  A.  for  ten  years,  at  the 
expiration  of  which  time  the  corpus  •  is  to  vest  in  A.,  or,  if  he 
die  prior  thereto,  in  B.,  and  if  A.  and  B.  shall  both  die  prior 
thereto  then  to  C.  and  D.,  or  the  survivbr  of  them,  and  if  both 
C.  and  D.  shall  die  then  over;^  and  a  devise  in  fee  to  the  sur- 
viving children  of  the  testator  who  may  be  living  at  the  death 
of  a  life  tenant,  and  to  the  then  living  issue  of  any  child  of  the 
testator  who  may  then  be  deceased,  to  be  divided  among  the 
issue  when  they  attain  the  age  of  twenty-one  years,®  are  valid, 
as  they  do  not  suspend  the  vesting  more  than  two  lives  in  being 
at  th?  death  of  the  testator,  A  devise  to  A,  for  life,  on  his 
death  to  B.  and  C,  for  life  jointly,  and  to  the  survivor  of  B.  and 
C. ; ''  or  to  A.  for  life,  with  a  remainder  for  life  to  all  the  chil- 
dren of  the  testator  surviving  A.  ;^  or  a  trust  to  pay  income  to 
A,  for  life,  then  to  B.  and  C.  for  life,  and  to  the  survivor  of 
them,  and,  on  his  death,  to  the  children  of  the  survivor,  but 
if  all  die  without  issue  then  to  D.  ;^  or  to  three  persons  for 
their  joint  lives,  and  to  the  survivor,  and,  on  his  death,  to 
others ;'°  or  a  similar  devise  to  three  for  life,  and  if  they  die 
without  issue  then  as  the  law  directs;''  to  the  widow  of  the 
testator  for  her  life  and  then  to  his  daughter,  and,  if  she  die 

1  Williams  v,  Conrad,  30  Barb.  6  Vanderpoel  v.  Lowe,  112  N.  Y.  107, 
(X.  Y.)  5'J4.  19  N.  E.  R  481. 

2  Parks  V.  Parks,  9  Pai;;e  (N.  Y.),  7  Arnold  v.  Gilbert,  5  Barb.  (N.  Y.) 
107.  Cf.  Snhermerhorn  v.  Cotting,  190;  VanScliuyvcr  v.  llulford,  59  N. 
131  N.  Y.  48.  Y.  420. 

3  Bird  V.  Pick  ford.  35  N.  E.  R.  938,  8  Post  v.  Hover,  33  N.  Y.  593. 

141  N.  Y.  18,  reversing  25  N.  Y.  Supp.  9  Knox  v.  James,  47  N.  Y.  389:  Wesl> 

40.    Thi.s  is  only  for  one  life  — that  orvclt  v.  Westorvolt,  1  Bradf.  (N.  Y.) 

of  A.  137. 

«Montagnini  v.  Blade,  39  N.  E.  R.  i'>  Kowlcr  v.  Tngersoll,  50  Hun,  004, 

719.  145  N.  Y.  111.  2  N.  Y.  Supp.  H33. 

»MoiitaKiiini  v.  Blade,  39  N.  E.  K.  i'  Ward  v.  Ward,  105  N.  Y.  00,  11  N. 

719,  115  N.  V.  ill.  E.  K.  :i73. 


1370  LAW  0?  "WILLS.  [§  899. 

before  her  husband  and  without  children,  then  to  him  for  life ;  ^ 
to  four  persons  for  their  joint  lives,  and,  on  the  death  of  any 
of  them,  to  divide  among  the  survivors  and  the  children  of 
those  then  deceased  ;2  to  A.  for  life  and  then  to  his  children, 
with  a  devise  to  B.  in  case  all  the  children  shall  die  under 
age; '  or  a  devise  in  trust  to  pay  annuities  to  the  grandchildren 
of  three  persons  named  until  the  death  of  their  (the  grand- 
children's) parents,  which  would  be  at  least  for  six  lives,^  is  an 
invalid  disposition,  as  in  each  case  the  period  of  two  lives  is 
exceeded. 

An  appointment  by  the  holder  of  a  life  estate  under  a  will 
to  A.  for  life,  remainder  to  A.'s  descendants,  is  valid,  where 
hoilitlie  life  tenants  were  living  when  the  original  will  was  exe- 
cuted.^ A  direction  to  pay  the  income  of  a  fund  to  A.  for  his 
life,  and,  on  his  death  without  issue  him  surviving,  then  half 
of  the  income  to  B.  for  his  life,  and  half  of  the  income  to  C. 
for  his  life,  is  valid.^  So,  too,  is  a  devise  to  A.  for  life,  and  then 
to  be  equally  divided  between  B.  and  C.  for  their  lives,  and  on 
the  death  of  each  one,  then  his  share  to  go  to  his  children.''  A 
clause  devising  a  fund  which  had  been  attempted  to  be  devised 
in  trust  for  a  purpose  which  may  prove  illegal  "  in  the  event 
that  this  bequest  and  devise  .  .  .  should  be  adjudged  or 
prove  invalid,  or  its  execution  be  impossible  either  by  judicial 
decree  or  from  any  other  cause,"  does  not  suspend  the  vesting 
for  an  illegal  period,  the  length  of  which  is  to  be  measured  by 
the  time  it  shall  require  for  the  court  to  reach  a  decision.  The 
estate  vests  at  once  upon  the  death  of  the  testator,  as  the  de- 
cision of  the  court,  when  it  is  reached,  relates  back  and  deter- 
mines the  state  of  the  law  as  it  was  at  that  date  and  not  as  it  is 
at  the  date  when  the  decision  is  reached.^  A  trust  for  the  ben- 
efit of  A.,  B.  and  C.  for  life,  remainder  in  the  share  of  the  prin- 
cipal to  the  children  of  each  on  his  death,  and  in  the  case  of 

1  Woodruff  V.  Cooke,  47  Barb.  (N.  Y.)  point,  Frear  v.  Pugsley,  30  N.  Y.  Supp. 

304.  149.  9  Misc.  R.  31G. 

•■^Colton  V.  Fox,  6  Hun.  49.  eWeller  v.  O'Brien,  23  N.  Y.  Supp. 

3  Kennedy  V.  Hoy,  105  N.  Y.  524,  366. 

11  N.  E.  R.  390.  7  Trolan  v.  Rogers,  79  Hun,  507,  29 

*  Lorillard  v.  Coster,  5  Paige  (N.  Y.),  N.  Y.  S.  899. 

172.  8  Cruikshank  v.  Chase,  21  N.  E.  R. 

6  Hillen  v.  Iselin,  144  N.  Y.   365,  64,  113  N.  Y.  337. 
39  N.  K  R  368.    See  also,  on  this 


§  900.]  PEKPETUITIES    AND    EKMOTE^^ESS    OF    TESTING.  13V7 

the  deatli  of  am"  one  of  the  life  tenants  leaving  no  children, 
his  share  to  the  other  life  tenants,  and  on  the  death  of  all  three 
the  principal  to  go  to  the  surviving  children,  if  any,  is  void  as 
to  the  limitation  over  to  the  surviving  children.  But  the  life 
estate,  and  the  limitation  over  in  case  of  the  death  of  any  life 
tenant  without  children,  is  valid,  and  will  be  sustained  though 
the  other  limitation  is  void  as  in  violation  of  the  statute.^  And 
the  same  rule  is  applicable  where  the  trust  is  for  the  life  of  A., 
and  on  his  death  to  be  divided  into  shares  for  several  legatees, 
W'ith  cross-remainders  on  the  death  of  any  life  tenant  without 
issue.^  A  devise  in  trust  to  pay  the  income  to  each  of  the  tes- 
tator's eight  children  during  their  lives,  and  after  their  death 
to  their  respective  husbands  or  wives,  and  if  any  should  die 
without  leaving  a  husband  or  a  wife,  or  without  issue,  and 
leavino-  a  husband  or  wife  him  or  her  survivino-,  then  to  the 
survivors,  is  valid  and  does  not  suspend  the  power  of  alienation 
for  a  longer  period  than  for  the  life  of  the  beneficiary  and  the 
Imsband  or  wife  survi^ing  liim  or  her.  In  this  case  it  is  evi- 
dent from  the  context  of  the  will  that  the  testator  meant  the 
husband  or  wife  living  at  the  date  of  his  death,  and  not  any 
future  husband  or  wife.  Hence,  such  a  disposition  does  not 
restrain  the  power  of  alienation  for  a  longer  j)eriod  than  for 
two  lives  in  being  at  the  date  of  the  death  of  the  testator.^ 
A  devise  in  trust  until  A.  sliall  attain  the  age  of  twenty-one 
or  shall  die,  and  if  he  shall  die  before  B.  attains  the  age  of 
twenty-one,  then  until  B.  shall  attain  that  age  or  die,  is  valid. 
If  A.  should  live  to  be  twenty-one  the  estate  would  vest  at 
once,  and  then  the  power  of  vesting  is  suspended  only  for  his 
life.  If  he  shall  die  after  the  date  upon  which  B.  attains  his 
majority,  the  period  of  vesting  is  lengthened  only  by  the  life- 
time of  B.  at  the  most.  In  neither  case  is  the  vesting  post- 
poned longer  than  two  lives  in  being.* 

§  0(M).  The  statutory  rule  of  perpetuities  in  "Wiscousin. — 
In  the  state  of  "Wisconsin  the  statute  expressly  provides''  that 
tlie  absolute  power  of  alienation  of  tiio  fee  shall   not  be  sus- 

1  In  ro  Ricard's  Estate.  28  X.  Y.  S.  178,  19  N.  E.  R.  (50.  Aii.l  soo  Doau  v. 
683,  7  Misa  R  019;  In  re  Ewon,  i<l.  ]yiumfor(l  (Mich.),  01  N.  W.  R  7. 

2  Brown  v.  Riohtor,  70  Hun,  W.),  ■•(Jowcn  v,  Uiiialdo,  28  N.  Y.  Snpp. 
27  N.  Y.  Supp.  1094.  Hm,  H  Misc.  R.  1 1."). 

3  Van  Hrunt  v.  Van  Brunt.  1 1 1  X.  Y.  ^  K.  S.  1878,  gg  2038,  2039. 

H7 


13 78  LAW    OF    WILLS.  [§  901. 

j)ended  "  for  a  longer  period  than  two  lives  in  being  at  the 
creation  of  the  estate."'  ^  Under  this  statute  a  devise  to  A.  for 
life,  remainder  to  his  then  living  children,  i.  e.,  living  at  his 
death,  and  in  default  of  such  to  the  then  living  heirs  of  the  tes- 
tator,- or  to  A.  and  B.  jointly  for  life,  remainder  in  fee  to  tho 
survivor,  and,  on  the  death  of  the  former  under  twenty-one 
3"ears  of  age,  to  C.  in  fee,^  or  to  A.  for  his  life,  then  to  B.  for 
his  life,  remainder  in  fee  on  the  death  of  B.  to  his  then  surviv- 
ing children,'*  is  valid,  as  the  power  of  alienation  in  each  of 
the  above  instances  is  not  suspended  for  more  than  two  lives 
in  being  at  the  death  of  the  testator.'^ 

§  901.  The  suspension  of  alienation  for  the  purpose  of  ac- 
cumulating income. —  Prior  to  the  passage  of  the  statute  39 
and  40  George  III.,  chapter  9S,  section  20,  it  was  legally  within 
the  power  of  a  testator  to  create  a  trust  for  the  accumulation 
of  income  for  the  same  period  as  was  the  measure  of  his  power 
to  direct  a  suspension  of  the  absolute  jiower  of  alienation. 
Thus,  a  fund  might  have  been  left  in  trust  to  accumulate  the 
rents  and  proiits  of  the  same  during  the  life  or  lives  of  any 
number  of  persons  in  being  at  the  death  of  the  testator  and  for 
the  period  of  twenty-one  years,  and  a  possible  period  of  gesta- 
tion thereafter.  The  moving  cause  for  the  passage  of  the  stat- 
ute just  mentioned  was  the  legal  controversy  which  arose  upon 
the  will  of  ]\Ir.  Thelluson,  which  is  discussed  in  the  notes.  By 
that  statute  the  settlement  or  the  devise  in  trust  of  any  and  all 
real  and  personal  property  for  the  accumulation  of  the  income 
thereof  for  any  longer  term  than  the  life  of  the  grantor,  or 
than  the  term  of  twenty-one  years  from  the  death  of  the 
grantor  or  from  the  death  of  the  testator,  or  than  the  minority 
of  persons  wdio  shall  be  living  or  en  ventre  sa  mere^  or  the  mi- 
norities of  persons  who,  under  the  trust,  shall  be  entitled  to  the 
income  which  is  directed  to  be  accumulated,  is  invalid.  In 
construing  the  English  statute,  the  courts  have  held  that  an  ac- 
cumulation for  twenty-one  years  after  the  death  of  the  testator 
is  valid  only  if  the  period  immediately  follows  his  death,  so 

1  See  De  Wolf  v.  Lawson,  61  Wis.  ^  Tyson  v.  Hougliton  (Wis.,  1897),  71 

474;  Scott  V.  West,  63  Wis.  529,  575.  N.  W.  R.  94. 

-  Saxton  V.  Webber,  83  Wis.  617,  ^  See  also  Beurhaus  v.  Cole,  94  Wis. 

625,  53  N.  W.  R.  905.  617,  627,  69  N.  W.  R.  986. 

3  Hughes  V.  Hughes,  91  Wis.  138, 
142,  64  N.  W.  R.  851. 


Oul.] 


PERl'ETUITIES    AND    REMOTENESS    OF    TESTING. 


1379 


that  if  an  accumulation  is  to  commence  at  a  date  which  is 
subsequent  to  the  death  of  the  testator,  it  will  only  be  valid  up 
to  the  end  of  the  period  of  twenty-one  years.^ 

In  many  of  the  states  of  the  American  Union  statutes  Avhicli 
are  similar  in  their  provisions  to  the  English  statute  have  been 
})assed.    In  Xew  York,  by  statute,-  the  accumulation  of  income 

1  Shaw  V.  Rhodes,  1  My.  &  Cr.  154;  under  age  when  his  share  vested,  tlie 

"Webb  T.  Webb,  3  Beav.  493.  property  would  amount  to  upwards 

The  circumstances  attendant  upon  of  one  hundred  million  pounds  ster- 

the  often-cited  case  of  Thelluson  v.  ling.     "The  testator's  object,"  says 

AVoodford,  4  Ves.  227,  were  as  fol-  Chancellor  Kent,  commenting  upon 

lows:    Peter  Thelluson  died  in  the  this  case,  "was  to  protract  the  power 

year  1797,  leaving  a  will  by  which  of  alienation  by  taking  in  lives  of 

lie  devised  his  estate  to  trustees  in  persons  who  were  nominees  without 

fee  to  accumulate  the  income  and  any    corresponding    interest.      The 

re-invest  the  same  during  the  lives  property   was    thus    tied    up    ironx 

of  all  the  sons  of  the  testator,  and  of  alienation  and  from  enjoyment  for 

all  liis  grandsons   born  in  his  life-  three    generations;    and  when   tlie 


time  or  then  en  ventre  sa  mere,  and 
to  receive  the  profits  and  to  invest 
them  from  time  to  time  in  other  real 
estate.  The  testator  left  him  sur- 
viving three  sons  and  four  grand- 
sons, and  had  twin  sons  postliu- 
mously  born  to  him.  There  were 
tluis  in  being  at  the  death  of  the  tes- 
tator nine  persons,  several  of  them 
Iteing  infants  in  arms,  during  whose 
lives  the  income  was  to  be  accumu- 
lated. At  and  after  the  death  of  the 
survivor  of  all  these  persons  the  es- 


period  of  distribution  sliall  arrive, 
the  accumulated  increase  of  the  es- 
tate will  be  enormous.  This  is  the 
most  extraordinary  instance  upon 
record  of  calculating  and  unfeeling 
]>ride  and  vanity  in  an  ancestor,  dis- 
regarding the  ease  and  comfort  of 
his  immediate  descendants  for  the 
miserable  satisfaction  of  enjoying  in 
anticipation  the  wealth  and  aggran- 
dizement of  a  distant  posteritJ^  Such 
an  iron-hearted  scheme  of  settle- 
ment, by  withdrawing  property  for 


tate,  with  all  the  accunmlations.  was    so  long  a  period  from  all  the  uses 
to  be  conveyed  to  the  eldest  living    and  purposes  of  social  life,  was  intol- 


inale  descendant  of  each  of  the  sons, 
and  in  default  of  a  living  male  de- 
scendant of  any  son,  tlien  to  tlie  de- 
scendants of  tlie  otlier  sons.  The 
validity  of  the  will  was  sustained  by 
the  court  of  chancery  in  1798.  and 
hy  the  hoiLse  of  lords  in  180.1  The 
l<;stator  died  in  the  year  1797  and 
left  about  half  a  niillion  [Mmnds  ster- 
ling. If,  as  Cliancellor  Kent  ro- 
iiiarks,  the  jKiriod  of  accumulation 


erable.  It  gave  occasion  to  the  stat- 
ute of  39  and  40  Geo.  III.,  prohibiting 
any  person  from  settling  or  devising 
real  or  personal  jtrojx'rty,  for  tho 
purpose  of  accumulation,  by  means 
of  rents  or  profits,  for  a  longer  period 
tiian  the  life  of  tlio  grantor  or  testa- 
tor, twenty-one  years  after  Ids  deatli, 
or  during  the  minority  of  any  per- 
son who,  under  tlio  deed  or  will  di- 
recting the  accumulation,  would,  if 


sliould  extend  to  one  hundred  years  tlion  of  full  age.  be  entitled  to  tlio 

from   that  daUi.  as  it  might  well  do  rentH    and   i)rollts."     4   Kent,  Com., 

in  view  of  th<;  iiifuruty  of  the   jiost-  j).  2N0. 

liiiinouH  H(>nn  of  the  testator,  ami  as-  -4  Jiev.  St.  (Sth  ed.),  pp.  2434,  2435, 

huming   that  the  final   devisee   was  gg  37,  3b,  ami  p.  2ol0,  ^,^  3,  L 


13S0  LAW    OF    WILLS.  [§  901. 

except  for  the  benefit  of  minors  in  being,  and  during  the  period 
of  their  minority,  is  expressly  forbidden.  Under  this  statute 
a  trust  requiring  an  accumulation  for  a  definite  term  of  years,^ 
or  during  a  life  in  being,-  or  during  an  indefinite  period,  as,  for 
example,  until  the  accumulations  amount  to  sudicient  for  a 
particular  purpose,'  is  invalid.  Every  provision  for  an  accu- 
mulation which  is  for  a  period  which  is  not  measured  by  the 
minority  of  some  person  Avho  is  in  being  at  the  death  of  the  tes- 
tator is  invalid  in  the  state  of  Xew  York.^  V>\.\t  in  that  state 
it  has  also  been  held  that  the  accumulation,  though  it  may  be 
directed  for  a  longer  period  than  a  minority,  will  be  good  at 
least  for  the  minority  of  the  minor  for  whose  benefit  the  accu- 
mulation has  been  directed.^  So,  where  a  trust  for  an  illegal 
accumulation  has  been  framed,  the  amount  accumulated  under 
it  devolves  upon  that  person  who  is  next  eventually  entitled 
under  the  will.®  In  the  state  of  Pennsylvania  the  statute  ^  pro- 
vides that  no  settlement  or  appointment  by  any  device  what- 
ever for  the  accumulation  of  the  profits  of  real  or  personal 
property,  except  for  charitable  or  religious  purposes,  shall  be 
allowed  for  a  longer  period  than  the  life  or  lives  of  the  one  or 
more  persons  making  it,  and  twenty-one  years  from  their  re- 
spective deaths,  with  an  allowance  in  case  of  a  possible  term  of 
gestation.^  Under  this  statute  it  does  not  seem  necessary  that 
the  object  of  the  accumulation  shall  be  to  benefit  the  minor. 
An  accumulation  for  any  purpose  is  valid,  provided  the  period 
in  which  it  takes  place  does  not  exceed  the  period  of  twenty- 
one  years  after  the  death  of  the  testator.  The  object  of  the 
statute  is  to  prevent  a  permanent  accumulation  b}''  which  the 
property  accumulated  may  be  permanently  taken  out  of  the 
market.  A  mere  temporary  accumulation  of  the  suri)lus  in- 
come which  may  arise  after  the  support  of  a  legatee  is  provided 

1  Tucker  v.  Tucker,  5  N.  Y.  408.  ^  Cochrane  v.  Schell,  35  N.  E.  R.  971, 

2  In  re  Roos"  Estate,  4  Misc.  R.  232,  140  N.  Y.  51G;  Smitli  v.  Parsons,  14G 
24  N.  Y.  S.  862.  K  Y.  116,  40  N.  E.  R.  736. 

3  Wells  V.  Wells,  24  N.  Y.  S.  874.  30  7  Act  Leg.  Pa.,  1853,  P.  L.  503;  and 
Abb.  N.  C.  225;  In  re  Hoyt's  Estate,  see  also  Act  May  9,  18S9,  P.  L.  173; 
24  N.  Y.  577,  71  Ilun,  13.  Purdons  Dig.,  p.  2450. 

^Harrisv.CIark,  7N.  Y.  242;Manice  '^As  to  charitable  gifts  see  In  re 
V.  Manice,  43  N.  Y.  303;  Hawley  v.  Lennig's  Estate,  154  Pa,  St.  209,  25 
James,  5  Paige  (N.  Y.^  318.  Atl.  R.  1049. 

5  Oilman  v.  Reddington,  24  X.  Y.  9; 
Hull  V.  Hull,  25  X.  Y.  017. 


§  002.]  PEKPETUITIES   AND   EEMOTKXESS    OF   TESTIXG.  13S1 

for,  which  surplus  is  to  be  applied  for  his  benefit  as  he  may 
need  it,  is  not  prohibited  by  the  statute.^  Accumulations  for 
charitable  purposes  constitute  an  exception  to  the  rules  dis- 
cussed in  this  section,  and  these  "\ve  will  discuss  in  the  next  sec- 
tion. 

§  902.  The  Talidity  of  accuinulatious  for  a  charity. —  The 
rule  which  limits  the  accumulation  of  income  to  a  fixed  period 
which  is  measured  by  a  life  or  lives  in  being,  or  by  minorities, 
is  not  applicable  to  accumulations  of  income  which  are  di- 
rected to  provide  for  charities.  Assuming  that  the  law  re- 
stricting the  suspension  of  the  alienation  of  property  does  not 
apply  to  a  devise  of  the  fee  outright,  the  income  to  be  at  once 
(j'iven  to  the  poor  or  the  needy,  or  to  other  charitable  purposes,  no 
valid  reason  exists  why  a  testator,  who  may  not  leave  enough 
])roperty  at  his  death  to  carry  out  fully  his  charitable  intentions, 
may  not  provide  that  the  income  of  what  he  can  then  give  shall 
accumulate  indefinitely  until  sufficient  is  realized.  A  gift  to  a 
charitable  institution  which  is  to  be  incorporated  subsequently 
to  the  death  of  the  testator-  is  almost  universally  valid.  And 
it  IS  submitted  that  a  gift  to  accumulate  for  a  charity  is  not  to 
be  overthrown  merely  because  the  whole  amount  necessary  is 
not  given  in  the  aggregate,  but  a  small  sum  is  given  with  a  di- 
rection that  it  shall  accumulate  until  with  the  interest  and 
income  it  is  sufficiently  large  for  the  purpose. 

In  the  case  of  Downing  college  at  Oxford  a  gift  to  purchase 
ground  and  build  a  college  was  sustained,  though,  because  of 
the  peculiar  circumstances  of  the  case,  the  trust  was  not  carried 
i.ut  until  fifty  years  after  the  death  of  the  testator.^  So,  too, 
in  an  early  American  case  a  fund  was  given  in  trust  to  accu- 
mulate until  sufficiently  large  to  su[)port  fifty  sailors  in  a  hos- 
pital. The  United  States  sui)reme  court  sustained  the  gift,  and 
an  institution  was  incorporated,  which  at  the  present  time,  by 
i-eason  of  the  immense  advance  in  the  value  of  the  land  de- 
vised, supports  in  great  comfort  nearly  one  thousand -aged  sail- 
ors.* 

•In  ro  IIil)l/s  Estiitc,  U:i  I'a.  St.  » Attorncy-nenoral  v.  llcwniiif,', 
217,  'IM  W.  N.  C.  ]«,  22  Atl.  R  W2;  In  Wilniot,  i:},  Dick.  411.  Ami).  TmO,  T^tX. 
n-  Willijunwjn'H  EHtiite,  22  Atl.  \L  h:\,        *  InKliw  v.  Sailors'  Snug  Harbor,  i 

n:{  IV  su  i.vj.  2«  w.  N.  c.  yo;i.  ivterH,  yy. 


13S2 


LAW    OF    WILLS. 


[§  902. 


An  explicit  direction  that  the  income  of  a  sum  of  monc}'' 
shall  accumulate  for  a  specified  number  of  years,  and  at  the  end 
of  that  period  shall  be  given  to  a  charity,  is  therefore  valid.' 
A  direction  that  a  fund  and  its  income  shall  accumulate  indefi- 
nitely for  a  charity  is  valid,-  though  the  limits  of  the  period  of 
accumulation  are  subject  to  the  control  and  jurisdiction  of  a 
court  of  equity,  which  may  terminate  the  accumulation  of  in- 
come if  it  has  been  going  on  for  an  unreasonable  time.^  For, 
though  equity  will  not  usually  interfere  where  a  definite  period 
is  lixed  during  which  the  income  is  to  accumulate,  or  where 
the  trustees  have  an  uncontrollable  discretion  to  determine 
whether  sufficient  income  has  accumulated  or  not,  still  if,  by 
reason  of  the  rapid  increase  in  value  of  tlie  property  in  trust 
and  the  negligence  of  the  trustees  in  expending  the  income  as 
directed,  the  fund  is  increasing  at  an  exceedingly  rapid  rate,  a 
court  of  equity  will  order  the  application  of  principal  and  in- 
come to  the  charitable  purpose  indicated,  or  to  some  other  pur- 
pose cy  jpres} 


1  Brown  v.  Yeall,  7  Ves.  50,  n.,  cited 
in  9  Ves.  403,  406,  10  Ves.  27,  584; 
Northampton  v.  Smith,  11  Met. 
(Mass.)  390  (accumulation  for  sixty 
years);  Woodrufif  v.  Marsh,  63  Conn. 
125,  26  AtL  R.  846  (one  hundred 
years).  A  direction  in  the  will  of 
Benjamin  Franklin  that  the  income 
of  a  fund  devised  therein  should  ac- 
cumulate, and  at  the  end  of  one  hun- 
dred yeai's  shovdd  be  given  to  the 
city  of  Philadelphia  for  public  works, 
was  sustained  in  Franklin's  Adm'r  v. 
City  of  Philadelphia,  13  Pa.  Co.  Ct. 
R.  241,  2  Pa.  Dist.  Ct.  R.  435,  9  Pa.  Co. 
Ct.  R.  484. ' 

^Ingraham  v.  Ingraham,  169  111. 
432,  451,  48  N.  E.  R,  561;  In  re  Len- 
nig's  Estate,  154  Pa.  St.  209.  25  Atl.  R. 
1049;  Whitman  v.  Lex,  17  S.  &  R. 
(Pa.)  91;  Philadelpliia  v.  Girard,  45 
Pa.  St.  1;  Odell  v.  Odell,  10  Allen 
(Mass.),  1,  6,  7,  13  et  seq.;  Harbin  v. 
Masterman,  7  Rep.  159,  (1894)  2  Ch. 
184,  L.  R.  12  Eq.  559;  Talbot  v.  Jevers, 
L.  R.  20  Eq.  355;  Roger's  Estate,  179 
Pa.  St.  609,  36  Atl.  R.  340. 


3  Wardens  of  St.  Paul's  Church  v. 
Attorney-General,  164  Mass.  188,  41 
N.  E.  R.  231;  Woodruff  v.  Marsh, 
supra. 

*  American  Academy  v.  Harvai'd 
College,  12  Gray  (Mass.),  582;  Hawes 
V.  Humphrey,  9  Pick.  (Mass.)  350, 355, 
362;  Hawes  Place  Con.  Soc.  v.  Hawes 
Fund,  5  Cush.  (Mass.)  454.  If  the  ac- 
cumulations are  to  cease  during  the 
life  of  a  person  in  being  or  at  his 
death,  no  question  of  a  perpetuity 
can  be  raised.  Ingraham  v.  Ingra- 
ham, 169  111.  432.  450,  48  N.  E.  R.  561. 
A  devise  in  trust  for  a  charitable 
purpose,  to  take  effect  when  a  suffi- 
cient amount  shall  have  been  sub- 
scribed by  the  general  public,  is  not 
void  as  a  perpetuity;  nor  is  it  too 
vague.  A  reasonable  time  will  be 
allowed  for  the  subscription,  to  be  de- 
termined on  all  the  circumstances 
by  a  covu-t  of  equity  as  having  juris- 
diction of  trusts  and  charities,  as  the 
performance  of  this  condition  is 
precedent  to  the  absolute  vesting  of 
the  executory  gift.    Almy  v.  Jones, 


§  902.]  PERPETUITIES    AND   KEMOTENESS    OF    VESTING. 


13S3 


IT  R.  I.  265,  21  Atl.  R.  616.  A  provis- 
ion that  income  shall  be  accumu- 
lated, and  that  half  sliall  be  paid  to 
charities  and  the  other  half  to  A. 
and  his  heirs,  though  valid  as  to  the 
charities  is  void  as  to  the  individu- 
als: but,  as  it  is  severable,  it  may  be 
sustained  as  to  tlie  former,  while 
overthrown  as  to  the  latter.  "Ward- 
ens of  St.  Paul's  Church  v.  Attorney- 
General,  164  Mass.  188.  41  N.  E.  R. 
231;  Harbin  v.  Masterman,  7  Rep. 
159,  (1894)  3  Ch.  184.  "We  are  not 
prepared  to  say  that  accumulation 
for  a  charitable  purpose  can  in  no 
case  be  allowed  for  a  fixed  period  of 
more  than  twentj'-one  years,  or  for  a 
contingent  period  beyond  a  life  or 
lives  in  being  and  twentj'-one  years 
afterwards.  The  uncertain  duration 
of  a  life  or  lives  in  being  would  seem 
to  have  no  relation  to  a  charity. 
And  the  justice  or  policy  of  a  rule  is 
not  apparent,  which  would  prevent 
a  person    charitably    disposed,   but 


whose  property  is  not  large  enough 
to  carry  out  his  charitable  intent 
by  an  accumulation  of  twenty-one 
years,  from  founding  a  charity,  ex- 
cept through  the  indirect  measure  of 
a  life  or  lives  in  being;  especially 
wlieu  the  period  of  accumulation 
which  he  needs  or  selects  is  one 
within  the  avex'age  duration  of  accu- 
nmlation  under  the  common  rule. 
The  objection  that  accumulations  for 
a  charitable  purpose  might  go  on  in- 
definitely, unless  governed  by  the 
common  rule,  would  certainly  be  en- 
titled to  grave  consideration  before 
determining  what  the  limit  is.  It  is 
possible  that  the  power  of  a  court  of 
chancery  over  charities  might  en- 
able it  to  so  modify  the  donor's  par- 
ticular directions  as  to  carry  out  his 
general  charitable  intention  with- 
out violating  any  rule  of  public  pol- 
icy." Odell  V.  OdeU,  10  Allen  (Mass.), 
1,  p.  13. 


CHAPTER  XLY. 

THE   UNCERTAINTY   OF  THE   LANGUAGE   AND    THE   ADMISSI- 
BILITY OF  PAROL  EVIDENCE. 


§  903.  The  uncertainty  of  testament 
ary  dispositions  —  Tlie  de- 
gree of  certainty  required. 

904.  The  invalidity  of  a  bequest  or 

a  devise  of  an  indefinite 
amount  or  quantity. 

905.  Gifts  which  are  void  because 

of  an  uncertainty  of  the 
beneficiary. 

906.  Wlien  a  gift  of  what  may  re- 

main after  a  void  gift  is 
invalid  for  uncertainty  of 
amount. 

907.  Construction  of  gifts  to  be  en- 

joyed by  several  in  succes- 
sion. 

908.  Parol  evidence  of  the  actual 

intention  of  the  testator  not 
contained  in  the  will  is 
inadmissible  if  introduced 


solely  for  the  purpose  of  in- 
fluencing the  construction 
of  the  testator's  language. 

909.  Pai-ol  evidence  to  show  the 

circumstances  of  the  tes- 
tator. 

910.  Patent  and  latent  ambiguities 

defined  —  The  admissibility 
of  parol  evidence  to  explain 
latent  ambiguities. 

911.  The  admissibility  of  parol  evi- 

dence to  identify  the  sub- 
ject-matter of  a  legacy. 

912.  Parol  evidence  to  show  mis- 

takes and  supply  omissions. 

913.  Parol  evidence  to  explain  tlie 

meaning  of  words. 
914  The  uncertainty  of  terms  de- 
scriptive of  real  property. 


§  903.  The  uncertainty  ot  testamentary  dispositions  — 
The  degree  of  certainty  required. —  The  informal  or  formless 
character  of  the  language  of  a  will,  its  lack  of  verbal  precision 
and  perspicuity,  and  the  fact  that  the  testator,  either  because 
of  ignorance  or  haste,  has  paid  little  or  no  attention  to  the 
Bules  of  grammar  or  literary  composition,  are  not,  per  se,  valid 
objections  to  it.  The  law  does  not  permit  the  ignorance  of  the 
testator,  or  his  inability  to  use  language  correctly,  to  defeat  his 
will.  It  overlooks  grammatical  and  orthographical  errors,  mis- 
takes in  punctuation,^  and  the  rude  and  uncouth  style  in  whicli 
his  intention  is  stated,  if  that  can  be  ascertained.  Courts  of  con- 
struction ought  to  favor  the  wills  of  testators  who,  though  per- 
haps mentally  unfitted  for  the  task,  have,  without  professional 
assistance,  attempted  to  make  their  own  wills.    Be  the  languagef 


1  Ante,  g  3G9. 


§  903.]       rXCERTAIXTY    OF    LAJS'GUAGE TAROL    EVIDENCE.         13S5 

of  the  will  ever  so  perplexing,  elliptio||i  and  vague,  the  court 
must,  with  patience,  construe  it,  accepling  all  the  light  which 
may  be  gained  from  the  context  and  from  evidence  of  surround- 
ing circumstances.^  The  testator  may,  with  safety,  be  presumed 
to  have  had  some  intention  in  mind  as  regards  the  disposition  of 
his  property  loheii  writing  his  will.  And  it  may  also  be  as- 
sumed that  the  testator  did  not. desire  to  die  intestate  or  he 
would  not  lave  made  any  will  at  all.  The  court  may  mould  the 
language  of  the  will  by  omitting,- transposing '  or  supplying 
words,*  where  this  is  possible  by  referring  to  the  context.  And, 
if  by  this  means  or  by  means  of  parol  evidence,  it  is  possible  to 
give  an  intelligible  meaning  to  the  language  of  the  will,  the 
court  ouo-ht  to  arive  it  that  meaninir.  It  must  be  an  extreme 
case  in  which  a  court  can  relieve  itself  from  the  responsibility 
of  construing  a  will  by  declaring  it  to  be  void  for  uncertainty. 
For  testamentary  language  ought  to  be  declared  void  for  un- 
certainty, onl}^  when  from  the  whole  will,  with  all  admissible 
parol  evidence,  it  is  mere  conjecture  to  say  what  the  testator 
means  by  the  words  that  he  has  used. 

The  fact  that  the  testator  uses  language  which  is  susceptible 
of  more  than  one  meaning  ought  not  to  deter  the  court  from 
placing  a  meaning  upon  his  language,  though  all  the  significa- 
tions which  are  attached  to  the  lanfi-ua^-e  are  diverse.  In  the 
interpretation  and  construction  of  wills  the  precise  and  literal 
meaning  of  words  is  not  always  to  be  adhered  to.  The  court 
must  from  the  whole  will  try  to  ascertain^  not  what  the  language 
ougld  to  mean.,  but  what  the  testator  has  employed  it  to  mean 
in  the  particular  will.  But  where  for  any  reason  the  provis- 
ions of  a  will  considered  in  its  entirety  are  so  obscure  that, 
witli  all  the  light  of  extraneous  circumstances,  no  definite  idea 
can  Ije  formed  of  the  intention  of  the  testator,  its  provisions, 
so  far  as  they  are  obscure,  are  void  for  uncertainty.^  This  is 
a  last  resort,  and  it  sliouhl  be  avoided  until  the  confines  of 
legitimate  construction  luive  Ijcon  reached,  and  to  proceed 
farther  would  be  to  enter  upon  the  realm  of  conjecture. 
Though  it  is  allowable  to  invoke  every  means  c»f  liiidiiig  the 

'  VoHt,  %  009.  6  Cope  V.  Coi.c.  ^:^  Ohio  St.  104,  15 

"^Anlc,  S  :Uil.  N.  K  li.  200;  RotliiimlcT  v.  Meyers,  4 

^Anle,  %•},  \mi,  :{03.  Uea  (S.  C.)  215. 
*Anlr,  g.^  :}0:i,  :}0y. 


13S6 


LAW    OF    WILLS. 


[§  904. 


intention,  it  cannot  be  permitted  to  gness  at  the  intention;  for 
it  shonUl  l)e  i-emenibered  that,  thougli  tlie  hiw  will  foster  and 
protect  the  statutor}''  right  of  the  testator  to  make  a  will,  and 
the  vested  interests  of  the  beneficiaries  under  it,  it  Avill  none 
the  less  sedulously  defend  the  rights  of  those  who  would  take 
the  property  in  case  of  intestacy.  Thus,  it  has  become  a  maxim 
in  the  construction  of  wills  that  the  heir  is  not  to  be  disin- 
herited unless  by  express  words  or  necessary  implication.  And 
in  modern  times  and  in  the  American  courts  the  same  protec- 
tion is  thrown  around  the  rights  of  those  who  take  personal 
property  under  the  statute  of  distribution.^ 

§  9(U.  The  invalidity  of  a  bequest  or  a  devise  of  an  in- 
definite amount  or  quantity. —  A  testamentary  gift  of  an  in- 
definite amount  of  money  or  of  an  indefinite  quantity  of  land  is 
void  for  incurable  uncertainty  when  neither  upon  the  face  of 
the  will,  nor  by  the  aid  of  admissible  parol  evidence,  can  it  be 
ascertained  how  much  land  or  money  the  testator  intended  to 


iDunlap's  Appeal,  116  Pa.  St.  500, 
9  AtL  R.  936.  "  We  ought  not,  with- 
out absolute  necessity,  to  let  our- 
selves embrace  the  alternative  of 
holding  a  devise  void  for  uncer- 
tainty. Where  it  is  possible  to  give 
a  meaning  vre  should  give  it,  that 
the  will  of  the  testator  may  be  oper- 
ative; and  where  two  or  more  mean- 
ings are  presented  for  consideration, 
we  must  be  well  assured  that  there 
is  no  sort  of  argument  in  favor  of  one 
view  rather  than  the  other  before  we 
reject  the  whole.  It  is  true  the  heir 
at  law  sliall  only  be  disinherited  by 
clear  intention;  but  if  there  be  ever 
so  little  reason  in  favor  of  one  con- 
struction of  a  devise  rather  than  any 
othei',  we  are  at  least  surer  that  this 
is  nearer  the  intention  of  the  testator 
than  that  the  whole  should  be  void 
and  the  heir  let  in.  The  cases  where 
courts  have  refused  to  give  a  devise 
any  effect  on  the  ground  of  uncer- 
tainty are  those  where  it  was  quite 
impossible  to  say  what  was  intended 
or  where  no  intention  at  all  had  been 
expressed,  rather  than  cases  where 
several  meanings  had  been  suggested 


and  seemed  equally  entitled  to  the 
preference.  On  this  head  it  may  be 
furtJier  observed  that  the  difficulty 
of  arriving  at  a  conclusion  —  even 
the  grave  doubt  which  may  hang 
around  it  —  certainly  the  diversity 
and  the  conflict  of  opinions  respect- 
ing it,  and  tlie  circumstances  of  dif- 
ferent persons  having  attached  dif- 
ferent meanings  to  the  same  words, 
form  no  ground  whatever  of  holding 
a  devise  void  for  uncertainty.  The 
difficulty  must  be  so  great  that  it 
amounts  to  an  impossibility;  the 
doubt  so  great  that  there  is  not  an 
inclination  of  the  scales  one  way,  be- 
fore we  are  entitled  to  adopt  the  con- 
clusion. Nor  have  we  any  right  to 
regard  the  discrepancy  of  opinion  as 
any  evidence  of  uncertainty,  while 
there  remains  any  reasonable  ground 
of  preferring  one  solution  to  all  the 
rest.  The  books  are  full  of  cases 
where  every  shift,  if  I  may  so  s[)eak, 
has  been  resoi-ted  to  rather  than  hold 
the  gift  void  for  uncertainty."  By 
Lord  Brougliam  in  Doe  d.  Winter  v. 
Perratt,  6  M.  &  G.  359. 


§904.]       rXCERTAINTT    OF    LA^'GUAGE PAKOL    EVIDENCE.         13S7 

give.  "Where  the  testator  directed  that  a  person  whom  he 
names  should  '■^ share  hi  his  estate,"  not  stating  how  much  he 
should  receive  as  a  share ;^  that  A.  should  be  "provided  with 
a  home ; "  -  or  where  he  devised  to  A.  "  a  small  jnece  of  land;  " ' 
or  gave  to  B.  '■'■  some  of  his  lest  linens;  "*  or  directed  his  exec- 
utor to  "  purchase  for  C.  some  land  at  a  price  not  to  exceed 

$ ,"  ^  the  legacy  or  direction  was  held  void  because  of  its 

uncertainty  as  to  the  amount.  But  a  direction  that  A.  shall 
have  power  "  to  appropriate  to  herself  absolutely  such  parts  of 
the  plate  as  she  may  wish  "  is  not  void  as  uncertain,  for  it  is 
an  absolute  gift  to  A.  of  all  the  testator's  plate.® 

Where  tlie  amount  of  a  pecuniary  legacy  or  the  quantity  of 
land  devised  is  capable  of  ascertainment,  either  from  a  perusal 
of  the  will  by  the  court  or  by  extrinsic  evidence,  the  will  must 
be  sustained.  This  rule  of  construction  is  frequently  applied 
to  a  direction  for  the  support  of  a  legatee  by  the  executor  out 
of  the  income  of  a  fund  in  trust,  where  the  precise  amount  of 
the  income  which  is  to  be  used  for  this  purpose  is  not  men- 
tioned. The  trustee  will  be  required  in  this  case,  if  he  has  no 
discretion  exjpressly  conferred  upon  him,  to  furnish  the  bene- 
ficiary with  a  support  and  education  commensurate  with  the 
income  of  the  amount  in  trust  for  the  purpose  according  to  the 
social  condition  of  the  beneficiary.  If  the  trustee  has  a  discre- 
tion to  fix  the  amount  to  be  paid  for  support,  he  must  exercise 
it  in  good  faith  according  to  the  language  of  the  will  and  the 
facts  of  the  case;  and,  if  he  does  not  do  this,  a  court  of  equity 
may  intervene,  and,  either  by  construing  the  will  or  by  other 
means,  find  out  how  much  is  required  to  carry  out  the  inteu- 

1^471^^,^.320.  death.     Jolinson  v.  Goss,  13S  Mass. 

"^  Ante,  %  318.  433, 435.   See  I'urther  as  to  the  power 

'  Weatherhead  v.  Sewell,  9  Humph,  of  a    le;;atee    to  select,   Ilobson   v. 

(Tenn.)  272.  Blackburn,  1  My.  &  K.  574;  Ja<'tiues 

♦Peek  V.  Ilalsey,  2  P.  W.  387.  v.  Cliambers,  2  Coll.  441,  453;  Millanl 

5 In  re  Traylor's  Estate,  81  Cal.  9,  v.  Bailey,  L.  R.  1  Eq.  378.   "Unto  my 

22  Pac.  It  297.  all  my  just  debts  and  demands  ail 

'' Arthur  V.  McKinnon,  L.  R.  11  Ch.  my  funeral  and  buryin^j  costs  (ii-st 

D.  3M5,  W.  N.  (1H79),  p.  93;  Kennedy  balance    to    S.   K.    my   brother  my 

V.  Kennedy,  10  Han*,  4.35.    A  be(juest  mntln'r  and  J.  M.  to  have  thi'ir  main- 

of  "on^,'  viDrlijiKji'/'  entitles  the  Iet;a-  tenc«!  and  burying;  char^^esout  of  it," 

tee  to  select  one  otit  of  sevf-ral  mort-  is  void   for    uncertainty.      Kelly   v. 

gages  owned  by  the  testator  at  hi.s  Kelly,  25  I'a.  St.  400. 


13S8  LAW    OF   WILLS.  [§  904. 

tion  of  the  testator  regarding  tlie  character  of  the  supi)ort 
which  is  to  be  furnished.^ 

On  the  other  hand,  a  legacy  of  the  "same  amount  as  liad 
been  given  in  the  will  of  A.,"-  a  direction  to  spend  income  for 
the  purpose  of  giving  a  legatee  a  "  liberal  education," '  a  leg- 
acy of  a  swn  equivalent  to  the  rent  of  a  certain  piece  of  land,* 
or  of  an  amount  which  is  to  be  determined  by  the  number  of 
shares  into  which  a  residue  is  to  be  divided,  or  a  direction  to 
executors  that  they  shall  retain  out  of  the  estate  a  "  reasonable 
sum  to  remunerate  them  for  their  trouble,"  ^  or  a  legacy  of 
"£3,000  or  thereabouts,"^  is  not  uncertain,  for  in  each  and 
all  of  these  cases  the  amount  can  be  positively  and  definitely 
ascertained,  either  by  a  reference  to  the  will  itself  or  to  com- 
petent written  evidence.  So  a  direction  to  a  trustee  to  pay 
"taxes  and  legal  assessments"  out  of  the  income,  to  "keep 
premises  in  repair,  and  to  pay  the  balance  of  the  income  to 
A.,"  is  not  void  for  uncertainty,  for  it  is  easy  for  the  trustee  to 
approximate  how  much  will  be  required  for  the  purposes  men- 
tioned, and,  if  more  than  enough  is  reserved  for  taxes,  repairs, 
etc.,  the  surphis  may  be  included  in  the  next  payment  of  in- 
come to  the  beneficiary.^ 

1  Forbes  v.  Darlins:,  94  Mich.  621,  54  2  Stevens  v.  Powys,  1  De  Gex  &  J. 

N.  W.  R.  621 ;  Conover  v.  Fisher  (N.  J.  24,  32. 

Eq.,  1898),  36  Atl.  R.  948;  McKenzie  ^  in  re  Atwoods  Estate,  82  N.  Y. 

V.  McKenzie,  145  Mass.  577,  15  N.  E.  Supp.  115,  10  Misc.  R.  480. 

R.  88:  In  re  Keinz's  Estate,  88  Hun,  4  R^^h  v,  Couchman,  92  Ky.  339, 

298,  34  N.  Y.  S.  339;  Collister  v.  Fas-  17  S.  W.  R.  1020. 

sitt,  48  N.  Y.  S.  792;  Pride  v.  Fooks,  &  Jackson  v.  Hamilton,  3  Jo.  &  Lat. 

2  Beav.  430,  437.     In  Broad  v.  Bevan,  702. 

1  Russ.  511,  the  legatee  was  com-  ^  Oddie  v.  Brown,  4  De  Gex  &  Jo. 

manded  "to  provide  for  the  daughter  179. 

of  the  testator  during  her  life,"  and  ^  In  re  Wordin's  Estate,  64  Conn, 

the    court    of    chancery    fixed    tlie  40,  29  Atl.  R.  238.     A  testator  gave 

amount  which  was  to  be  devoted  to  A.  the  "  use  and  control  of  the  two 

this  purpose.     Where  a  will  directs  east  rooms  of  his  house,  and  a  horse 

that  a  "  liberal  support "  shall  be  fur-  and  buggy,  and   if  the   horse  sliall 

nished,  the  court,  on  reviewing  the  die  the  executors  to  buy  another  for 

facts,  and  considering  the  amount  of  her,"  and  directed  the  executors  "  to 

the  income  and  the  value  of  the  es-  give  A.  a  decent  support  during  her 

tate,  may  determine  what  a  "liberal  natural  life."    The  provisions  as  to 

support  "  is.     McLean  v.  Thomas,  159  the  horse  and  the  ''  decent  support  " 

III.  227,  42  N.  E.  R.  788.     See  also  were  certainly  extremely  indefinite. 

Cresap  v.  Cresap,  34  W.  Va.  310,  12  The  court  held  that  A.  was  entitled 

S.  R  R.  327.  to  medical  attendance  and  other  ex- 


§  905.]       UXCEKTAIXTT    OF    LANGUAGE  —  PAROL    EVIDENCE.  1389 

A  legacy  of  an  amount  differently  stated  will  be  construed 
most  favorably  to  the  legatee.  Thus,  he  Avill  take  the  largest 
sum  where  the  legacy  is  of  an  amount  "  not  exceeding  §100,"  ^ 
or  "  of  $50  or  SIOO."  ^  And  where  the  amount  of  a  legacy  is 
expressed  by  the  dollar  sign,  followed  by  the  figure  5,  and 
this  is  followed  by  two  ciphers  connected  together,  with  a  dis- 
tinct space  but  no  decimal  point  between  the  figure  and  the 
ciphers,  the  ciphers  being  also  written  somewhat  above  the 
line,  an  ambiguity  exists  which  permits  the  introduction  of 
parol  evidence  to  aid  in  determining  whether  §5.00  or  §500 
was  meant  by  the  testator.^ 

§  905.  Gilts  Avliich  are  void  because  of  the  iiiieertamty  of 
the  beneficiary. —  If  the  court  cannot,  from  a  study  of  the 
context  of  the  will,  or  by  parol  evidence,  identify  the  persons 
intended  to  be  benefited,  so  that  it  is  utterly  impossible  to  as- 
certain who  is  meant  to  take,  the  will  must  be  to  that  extent 
void  for  uncertainty^  and  the  testator  is  intestate. 

A  legacy  to  '"'•  one  of  the  sons  of  A."  who  has  several  sons  at 
the  date  of  the  execution  of  the  will,*  or  to  the  children  of  "  a 
deceased  son  of  A."  who  had  three  deceased  sons  at  the  date 
of  the  will,  all  of  whom  left  children,-^  is  void  for  the  obvious 
reason  that  no  court  can  tell  which  son  is  meant.^  But  a  de- 
vise to  "  one  of  the  sons  of  A.  who  shall  take  care  of  i?."  is  not 
void  for  uncertainty,  for  the  gift  is  readily  made  certain  by 
the  performance  by  a  son  of  A.  of  the  condition  precedent 
upon  which  it  is  given.'^  This  rule  applies  to  a  legacy  "  to  one 
of  A.'s  daughters  that  shall  marry  a  Norton,"  which  means  the 
daughter  of  A.  that  shall  first  marry  a  Xorton.^ 

Gifts  to  indefinite  and  fluctuating  classes  are  not  necessarily 
void,  thougli  the  gifts  are  not/»<^/'  se  charitable,  where  it  can 

jienses  attendant  upon   her  illness,  zgeale  v.  Seale,  1  P.  W.  290. 

and  that,  if  the  hor.se  was  sold  by  ''Schlottnian    v.    lloirnian    (Miss., 

the  executors  to  meet  these  expense.s,  1890),  18  8.  K.  89:3. 

the  executors  should   purchase  an-  <  Strode  v.  Russell,  2  Vern.  (1708), 

other  for   A.     The   legatee  wa.s  not  621,   024;    McDeriiiott   v.   Insurance 

compelled  to  remain  in  the   rwjnis  Co.,  'i  Serg.  &  H.  (Pa.)  007. 

set  a|)art  for  her,  and  might  demand  *In  re  Stcplienson,  00  L.  J.  Ch.  93, 

a  decent  support,  though  she  should  1  Ch.  (1897 1.  75,  7r>  L.  T.  19"). 

reside  elsewhure.     Hurt  v.   Hart,  81  "See  Dowset  v.  Sweet,  .\ml).  17."i. 

Ga.  78.',,  8  S.  K.  It  182.  "  Whitt-si.leH  v.  Whitusidcs,  28  S.  C. 

'  Thompson  v.  Thompjion,  1  CcjII.  ;J2."),  :{;n.  .">  ,S.  R  K.  n16. 

895.  M'.at.-  V.  .\nili.Ts(.  '!".  Ravm.  83. 


1390  LAAV    OF    AVILLS.  [§  905. 

be  ascertained  b}^  parol  "who  are  the  members  of  the  class. 
Gifts  to  the  rehitives  of  the  testator  or  to  members  of  his  fam- 
ily are  valid. ^  But  a  devise  to  "  my  brother's  and  sister's  fam- 
ilies "  is  void  because  it  is  impossible  to  ascertain,  wliere  tlio 
testator  has  several  brothers  and  sisters,  which  of  them  was 
meant."  A  gift  to  a  class  described  by  words  referring  to  an- 
other part  of  the  will,  in  which  they  are  not  mentioned,  is  not 
thereby  void,  as  the  words  of  reference  may  be  rejected.  Thus, 
legacies  "  to  my  nephews  and  nieces  aforesaid,''''  ^  "  to  my  said 
children  last  mentioned,''^  *  or  to  "  such  children  of  A."  upon  his 
death,^  are  valid,  although  the  members  of  the  class  were  not 
mentioned  in  any  way  in  another  portion  of  the  will.^  All 
nephews  or  children  take  as  members  of  the  class.  So,  too,  a 
legacy  to  a  class,  excepting  one  member  Avho  is  not  named, 
goes  to  all  the  class.'^  A  devise  to  A.  or  to  B.,  in  the  alterna- 
tive, may  be  void  for  uncertainty,  unless  it  shall  appear  that 
A.  and  B.  are  to  take  in  succession,  or  that  '•  or  "  should  be  read 
"  (znfZ,"  in  which  latter  case  they  take  as  co-tenants.  Thus,  a 
devise  of  land  "  to  the  heirs  male  of  any  of  my  sons  or  next  of 
kin  "  was  regarded  as  of  doubtful  validity,  i'or  it  is  impossible 
to  tell  whether  the  testator  meant  the  heirs  male  of  one  of  his 
sons  or  of  all  of  them,  or  the  heirs  male  of  his  next  of  kin.^ 
So,  too,  a  devise  to  "  A.,  who  resided  at  B.  w^hen  I  left  Eng- 

1  Ante,  %  585.  4  Hall  v.  Hall,  123  Mass.  120,  124. 

2  Doe  d.  Hayter  v.  Joinville,  3  East,  5  Hope  v.  Potter,  3  K.  &  J.  206. 
172,176(1802).  Seeajife,  g  585.  Under  ^^  devise  to  the  "said  last  men- 
the  following  provisions  for  families  tioned  A.,  B.,  C.  and  D."  does  not  con- 
it  was  held  that  the  testator  meant  stitute  a  devise  to  D.,  who  was  not 
the  children  of  the  sister  named  to  mentioned  in  any  part  of  the  Avill. 
participate,  that  he  also  meant  to  Hyatt  v.  Pugsley,  23  Barb.  (X.  Y.)  285. 
group  the  legatees  in  families,  and  "  The  appointment  of  "  one  of  my 
that  the  legatees  took  per  stirpes,  sisters  to  be  my  executrix,"  tlie  tes- 
"  The  other  half  of  R.,  and  a  claim  I  tator  having  three  sisters  living  at 
have  against  the  government  of  the  the  date  of  the  will  (In  re  Blackwell, 
United  States,  I  think  is  about  one  L.  R.  1877,  P.  D.  72),  or  of  "  any  two 
hundred  thousand  dollars.  These  of  my  sons  to  be  executors,"  is  in- 
two  amounts,  or  halfs,  I  intend  to  valid  (In  re  Baylis,  2  Sw.  &  Tr.  613, 
give  to  the  families  of  my  brother  614)  as  incurably  uncertain.  A  de- 
Thomas  H.  Allen's  four  children  .  .  .  vise  to  A.,  B.  and  C.  as  individuals, 
and  to  the  five  children  of  my  sister  but  "  one  to  be  the  heir  of  the  others," 
Cynthia  A.  Smith."  Succession  of  is  uncertain  and  void.  Wood  v.  In- 
Allen,  20  S.  R.  193,  48  La.  Ann.  1036.  gersole,  1  Bulstr.  61,  Cro.  Jac.  260. 

3  Campbell  v.   Bouskell,   27  Beav.  s  Beal  v.  Wyman,  Styles,  240. 
325,  329. 


§  905.]       "UNCERTAINTY    OF    LAXGTJAGE PAROL    EVIDENCE.         1391 

land,  or  to  bis  heirs,  executors  or  assigns,"  was  held  void  Avhere 
A.  died  in  the  life-time  of  the  testator,  the  words  being  alto- 
gether too  uncertain  to  show  that  the  testator  intended  the 
heirs  to  take  b^'  substitution.'  AVliether  a  gift  in  the  alterna- 
tive to  the  "  heirs  or  next  of  kin  of  A."  is  void  for  the  uncer- 
tainty of  the  persons  who  are  to  take,  has  been  differently  de- 
termined. In  an  early  case-  such  a  gift  was  held  void,  for  in 
England  the  person  who  takes  the  real  estate  as  heir  is  almost 
always  a  different  person  from  those  who  take  the  personal 
property  under  the  statute  of  distribution.  On  the  other  hand, 
a  gift  of  jpersonal  estate  to  the  "  heirs  or  next  of  kin  "  of  a  person 
who  was  described  by  the  testator  in  the  will  as  deceased  was 
held  to  indicate  the  statutory  next  of  kin.^ 

Some  uncertainty  may  arise  from  a  loose  employment  of  the 
words  "  named "  or  "  mentioned."  To  name  means  almost 
always  to  be  mentioned  by  name.  But  where  a  testator  di- 
rected that  a  surplus  is  to  be  divided  among  the  legatees  "  here- 
inbefore named,"  and,  if  there  was  a  deficiency,  a  deduction, 
should  be  made  from  the  shares  of  all  the  legatees  named,  the 
direction  is  applicable  not  only  to  legatees  who  are  mentioned 
by  their  Christian  names  or  by  their  surnames,  but  also  to  those 
who  take  as  members  of  classes,  as  heirs  and  next  of  kin.*  So 
a  gift  to  persons  " /«?/'e/r^/b;'e  namecV  may  mean  and  include 
persons  mentioned  by  some  designation  other  than  their  Chris- 
tian name  and  surname,  if  such  clearh''  be  tlie  intent  of  the 
testator,^  "Where  the  testator  gave  a  legacy  to  his  relations 
"  hereafter  mentioned^''  and  omitted  to  mention  any  in  the  will, 
the  claims  of  his  next  of  kin  to  legacies  were  not  allowed.^ 
"  Hereinbefore  named  "  usually  means  named  as  a  legatee.  But 
where  the  testator  gave  a  legacy  of  one  dollar  to  A.  and  B., 
children  of  my  brother  C,  and  the  remainder  to  the  '-''heirs 
of  the  testator  not  before  named,''''  the  brother  C.  was  included 

1  White  V.  Templar,  2  Sim.  524.  sons  in  hospitals  of  or  in  tlio  city  of 

'-'Ixjwndcs  V.  Stone,  4  Ves.  C48.  050.  Ciintc'rl>ury  was  hokl  void  upon  the 

•'In   re   Tliornpson,  L.  K.  9  Ch.  IJ.  itrinciiilcs  statcil  in  the  text.     Flint 

007,  OO'i,  2  Kee.  &  J.  T-V).    And  in  one  v.  Waricii.  l.")  Sim.  «'J(5,  021). 

casfi  a  gift  to  A.  or  her  children  was  *  Ivu-xglcs  v.  Kandall  (Conn.,  1897), 

read  to  "A-  and  her  chihlren,"  and  W  Atl.  K.  hh.").  88K. 

the  gift  held  certain  and  valid,  the  ''Seale-llayno  v.  Joihcll,  Gl   U  J. 

devisees  taking  as  a  class.     Eccard  Cli.  7U.  72;  (1891)  Ch.  ;{UI. 

V.  Brooke,  2  Cox,  213.     A  gift  to  i)er-  M'lanipton  v.  Wi.se,  58  1^  T.  718. 


1393  LAW   OF   WILLS.  [§  OOG. 

amono"  the  Icfi-atccs  not  before  named.  The  namino'  of  C.  was 
merely  to  identify  his  children,  and,  where  C.  died  after  his 
legacy  vested,  his  heirs  were  permitted  to  take  by  descent  from 
liiin,  including-  the  two  children  A.  and  B.  to  whom  merely 
nominal  gifts  had  been  given.^ 

§  1)06.  IVhcn  a  gift  of  wliat  may  remain  after  a  void  gift 
is  invalid  for  uncertainty  of  aiuouut. —  A  legacy  of  the  resi- 
due, or  of  what  remains  after  another  legacy  is  paid,  the  amount 
of  which  latter  is  to  bo  determined  by  the  trustees  of  the  fund, 
by  executors,  or  by  the  circumstances  of  the  case,  may  fail  for 
uncertainty  because  of  the  failure  of  the  first  legacy.  If  the 
testator  has  not  pointed  out  how  much  is  to  be  included  in 
the  first  legacy,  and  it  fails  because  its  object  is  illegal  as  well 
as  its  amount  indefinite,  there  is  no  way  open  for  a  proper  as- 
certainment of  the  amount  of  the  probable  surplus.  In  strict- 
ness of  lano-uao^e,  when  the  first  legacy  fails  there  is  then  no 
surplus.  So  a  gift  of  a  sum  of  money  in  trust  for  the  purpose 
-of  erecting  or  purchasing  a  chapel,  and,  if  any  surj)lus  re- 
Qnains,  then  to ])ay  it  to  A.,  was  held  void  in  toto  by  the  court, 
because  the  direction  as  regards  the  chapel  was  in  contraven- 
tion of  the  statute  of  mortmain;  and,  this  legacy  failing,  no 
surplus  existed,  as  it  could  not  be  inquired  into  by  the  court 
how  much  the  testator  wished  his  trustees  to  expend  for  the 
chapel,  which  would  be  necessary  in  order  to  ascertain  the 
amount  of  the  probable  surplus  which  the  other  legatee  was  to 
take.' 

1  Klein  v.  Faulstich,  154  Pa.  St.  188,  the  congregation  to  be  expected 
26  Atl.  R.  218.  A  clause  directing  thei-ein,  but  the  gift  in  question  was 
the  disposition  of  property  "herein-  so  entirely  indefinite  it  was  quite 
before  given"  cannot  apply  to  prop-  uncertain  what  the  residue  would 
■erty  given  by  subsequent  clauses,  have  been."  See  also  the  nearly  sim- 
Reid  V.  Walbach,  75  Md.  205,  23  Atl.  ilarcaseof  Attorney-General  v.  Hinx- 
R.  472.  man,  2  Jac.  &  Wal.  272.     The  rule  in 

2  Chapman  v.  Brown,  6  Ves.  404,  the  text  has  been  applied  in  England 
410.  The  court  said  that  it  was  im-  to  that  class  of  cases  in  which  the 
possible  "to frame  any  direction  that  testator  has  directed  the  trustees  of 
wovdd  enable  the  master  to  form  any  a  fund  devised  in  perpetuity  to  erect 
idea  as  to  what  would  have  been  a  monument  for  himself  and  family, 
proper  to  expend  upon  the  chapel,  or  to  keep  his  grave  in  repair,  which 
If  the  testatrix  had  jwinted  out  any  is  void  as  not  being  for  a  public  char- 
particular  place,  that  might  have  itable  purpose  and  a  disposition  of 
furnished  some  gi'ound  of  inquiry  as  the  surplus  to  others.  See  cases  cited 
to  what  size  would  be  sufficient  for  ante,  §  823. 


§  90G.]       UKCERTAINTY    OF    LAXGL'AGE — -PAROL    EVIDENCE.  1393 

This  would  be  the  rule  Avhere  the  terms  of  the  void  devise 
are  so  extremely  vague  that  it  is  practically  impossible  to  learn, 
even  approximately,  how  much  the  testator  wished  to  devote 
to  the  carrying  out  of  the  void  purpose,  provided  it  had  been 
valid.  But,  on  the  other  hand,  if  the  expression  of  the  inten- 
tion of  the  testator  regarding  the  sum  of  money  which  is  to  be 
expended  upon  the  object  which  ultimately  proves  illegal  is 
clear,  or  if  it  can  be  made  clear  by  a  reference  or  other  judi- 
cial inquiry  involving  the  taking  of  evidence,  or  if  from  the 
terms  of  the  will  itself  the  court  is  able  to  ascertain  the  amount 
which  would  have  been  expended  if  the  purpose  had  been  a 
legal  one,  the  amount  of  the  surplus,  having  thus  been  made 
certain,  should  be  paid.^  But  this  rule,  though  commending  it- 
self to  reason  as  best  adapted  to  carry  out  the  testator's  inten- 
tion, has  not  met  with  universal  acceptance  in  the  English 
cases  in  which  the  question  of  the  disposition  of  a  surplus  to 
arise  after  a  void  and  indefinite  gift  has  failed  has  been  dis- 
cussed. In  cases  where  the  courts  might  ver}'  easily,  because 
of  the  nature  of  the  disposition  made  and  the  property  disposed 
of,  have  ascertained  the  amount  of  the  surplus,  they  have  re- 
fused to  do  so;  but  where  the  first  gift  was  illegal  or  invalid 
for  any  reason  whatever,  they  have  held  that  the  whole  fund 
shall  be  paid  to  the  legatee  to  whom,  in  the  first  instance,  the 
surplus  had  been  given,  wholly  discharged  of  the  void  purpose.- 
In  most  cases  such  a  new  disposition  of  the  whole  fund  in  favor 
of  the  person  to  whom  only  the  surplus  had  originally  been 
given  is  directly  contrary  to  the  intention  of  the  testator.  If 
the  general  residue  is  paHialhj  devised  for  a  purpose  'which  fails, 
and  the  surplus  of  that  residue  is  given  to  A.,  it  may  be  con- 
sistent with  the  intention  of  the  testator  to  give  A.  the  whole 
general  residue,  including  the  void  legacy,  as  the  word  "resi- 
due" comprises  everything  ineffectually  disposed  of  by  the  will. 

•  Mitfonl  V.  Reynolds,  1  riiil.  18"),  its  use  wliich  are  re;isoiial)ly  delinito 

199,  700.     If  the  testator   lias  indi-  in  so  far  as  they  entail  an  expendi- 

cated  thfijtrcciHc.  sum  he  wishes  given  tureof  money,  the  surplus  can  readily 

for  the  illef^al  imr[Kwe,  there  can,  of  be  ascertained  by  an  inquiry, 

course,  1x3  no  dilliculty  whatever  in  -  Fisk  v.  Attornev-(Jeiieral,  Ij.  R  4 

ascertiiinirif^  the  suii)lus.     If  he  has  Kr|.  rt'Jl:  In   re   liirkctt,  L.  K.  9  Ch. 

htated  the  particular  jiiece  of  land  Div.  57(1;  In  re  \Villianis,  L.  li.  5  Ch. 

which  he  desires  to  have  purchased.  I)iv.  'I'-i'). 
and  liaa  also  given  instructions  as  to 
88 


1304-  LAW    OF    WILLS.  [§  907. 

But  whore  the  testator  gives  a  general  pecuniary  legacy  in  part 
for  an  illegal  purpose,  and  the  surplus  to  A.  after  the  illegal 
purpose  shall  have  been  accomplished,  it  is  nullifying  his  in- 
tention to  give  A.  the  entire  legacy,  when,  if  the  particular  pur- 
pose had  been  valid,  he  would  have  received  very  much  less, 
and  perhaps  nothing  at  all  in  case  its  execution  had  exhausted 
the  legacy.'  If  the  amount  for  the  invalid  purpose  is  not  as- 
certainable, so  that  no  surplus  arises,  the  whole  legacy  should 
fail  and  go  to  the  residuary  legatee.  It  is  absurd  to  assume 
that,  because  the  testator  intended  A.  to  share  in  it  more  or  less 
according  to  circumstances  if  the  particular  purpose  had  been 
valid,  he  meant  him  to  take  the  whole  of  it  in  case  the  pur- 
pose for  whose  execution  no  sum  is  stated  should  be  impos- 
sible of  accomplishment. 

§  907.  Construction  of  gifts  to  he  enjoyed  by  several  in 
succession. —  An  objection,  based  upon  the  indefinite  and  un- 
certain character  of  the  language,  may  be  raised  in  the  case  of 
a  gift  to  several  persons,  to  be  by  them  enjoyed  in  succession. 

If  the  legacy  or  devise  is  to  several  individuals  specifically 
designated  by  name  or  otherwise,  each  to  have  a  life  estate, 
whether  expressly  or  by  necessary  implication,  as  "  to  A.,  B., 
and  C,  for  the  life  of  each,"  the  obvious  solution  of  the  diifi- 
culty,  and  one  which  approaches  most  closely  to  the  probable 
intention  of  the  testator,  is  for  the  several  beneficiaries  to  take 
estates  for  life  in  order  of  time  as  their  names  are  written  in 
the  will  by  the  testator. 

But  where  the  property  is  given  to  a  class,  or  to  an  indi- 
vidual named,  and  also  to  a  class  of  which  he  is  a  member,  to 
be  enjoyed  in  succession  by  all  the  members  of  the  class,  the 
order  of  succession  is  to  be  deteriliined  by  seniority  of  age; 
at  least  in  the  case  of  gifts  to  sons,  children  or  brothers  as 
classes.  So,  where  the  provision  was  for  A.  and  his  brothers 
successively,  and  A.  was  the  oldest  son  and  heir,  the  court  held 
he  should  take  first  in  order  of  time,  and  after  him  his  brothers 
according  to  their  age.'     Such  a  mode  of  disposition,  made  in 

1  Fisk  V.  Attorney-General,  siipra.  to  institute  an  inquiry,  but  gave  the 

In  re  Birkett,  supra,  and  Dawson  v.  wliole  sum  to  A.  discharged  of  the 

Small,  L.  R.  18  Eq.  14,  were  devises  invalid  legacy.   But  compare  contra, 

of  a  specific  sum  in  part  for  an  in-  Fowler  v.  Fowler,  33  Beav.  616. 

valid  purpose  and  the  surplus  to  A.,  ^Ongley  v.  Peale,  2  Lord  Raymond, 

and  in  each  case  the  court  declined  1313. 


§  90S.]   UXCERTAINTT  OF  LANGUAGE PAEOL  EVIDENCE.    1395 

order  to  avoid  an  invalid  devise  because  of  uncertainty,  may 
appropriately  be  made  in  England,  where  the  rule  of  primo- 
geniture is  established,  though  a  similar  devise  would  perhaps 
be  void  in  the  United  States.  Eut,  on  the  other  hand,  a  devise 
to  A.  for  life,  then  to  B.  for  life,  and  then  to  the  next  heir  of 
the  testator  in  succession  for  his  life,  was  held  void  as  to  all 
life  estates  coming  after  B.'s.^ 

§  908.  Parol  evidence  of  the  actual  Inteutiou  of  the  testa- 
tor not  contained  in  the  will  is  inadmissible,  if  introduced 
.solely  for  the  purpose  of  influencing  the  construction  of  the 
testator's  language. —  The  statute  requires  all  wills,  with  im- 
material exceptions,  to  be  in  writing.  As  the  statute  impera- 
tively requires  the  intentions  of  the  testator  to  be  in  writing, 
we  cannot  receive  evidence  which  is  extrinsic  to  the  writing  to 
contradict,  vary,  supplement  or  enlarge  the  signification  of  the 
written  language  which  the  testator  used.  The  testator  will, 
unless  a  contrary  presumption  is  created  by  the  context,  be  pre- 
sumed to  have  used  the  words  in  which  he  expresses  himself  in 
his  will  in  their  strict  and  primary  sense  and  application.  If, 
on  comparing  the  language  of  the  will  with  the  extrinsic  cir- 
cumstances of  the  person  and  property  of  the  testator,  which 
the  court  always  has  the  right  to  inc^uire  into,  it  shall  appear 
that  the  words  of  the  testator  have  an  intelligent  meaning  and 
express  an  intention  which  can  be  carried  out,  it  is  not  permis- 
sible to  receive  parol  evidence  to  show  that  they  possess  some 
other  and  a  different  meaning.  The  testamentary  intentions 
of  the  testator  must  be  learned  in  all  cases  from  the  will  itself. 
And  though  the  exclusion  of  parol  evidence  of  the  intention  of 
the  testator  is  rather  more  rigid  at  the  present  day  than  in 
earlier  times,  the  rule  of  exclusion  is  very  old,  haviug  an  origin 
contemporaneous  with  the  introduction  of  written  wills,  and 
being  in  the  first  instance  intended  for  the  su])prcssion  of  per- 
jury and  the  prevention  of  fraud.- 

1  Tliomason  v.  Moses.  5  Be:iv.  77.  Bevelot  v.  Lestrade,  15:i  111.  025, 38  N. 

2Stratton  v.  Morgtin  (Cul.,  18%).  44  W.  R.  lO.lC;  Heslop  v.  Gatton  (lUlli), 

Pa&  R.  KK'H:  SpaMiiig  v.  Huiitiiif,'-  71  III.  W8;  Biownliuld  v.  "Winslovv.  78 

tun,  1  Day  (Coun.,  1802).  8;  Avory  v.  111.   4(J7;   Pocock   v.   R(HiciiiiKor,   108 

Chappell.  0  Conn.  (1820),  270;    Can-  Ind.   :)7:],   575  (1880):    l)au;;li<rty   v. 

ii.-ld  V.  IV.st\vick.  21  Conn.  550  (1851);  Ro;,'er.s.  119  Ind.  (1889),  25J.  257;  llu.s- 

Thweatt  v.  Redd,  50  Ca.  (1S7;{).  181;  ton  v.   Huston,  :J(i   Iowa,  0(57  (1885); 

Rich;irdri  v.  Miller,  02  III.  117  (1871);  I^luir  v.   MilliT,  72  Iowa  (1887),  585, 


139G 


LAW    OF    WILLS. 


[§  909. 


§  001).  rurol  evidence  to  show  the  circumstances  of  the 
testator. —  On  reading  a  will  it  will  invariably  bo  found  that 
it  contains  in  almost  every  clause,  if  not  in  every  line  or  sen- 
tence, references,  either  express  or  by  implication,  to  extrinsic 
circumstances.  The  testator  refers  to  his  property  by  words 
of  specific  description,  as  "my  house  on  Broadway,"  or  he  re- 
fers to  certain  persons  specifically,  naming  them  as  beneficiaries, 
or  to  members  of  his  family  individually  or  as  classes,  as,  for 
example,  his  heirs  or  children.  Asido  from  any  question  of 
intention,  and  be  the  meaning  of  the  testator  ever  so  clear,  it 
is  very  evident  that,  before  we  can  adequately  understand  his 
Avill,  we  must  know  something  of  the  circumstances  by  which 


589,  34  N.  W.  R.  439;  Long  v.  Duvall, 
6  B.  Mon.  (45  Ky.,  1846),  219;  Stephen 
V.  Walker,  8  id.  (47  Ky.)  600;  Cald- 
well V.  Caldwell,  7  Biish  (Ky.),  516; 
McCauley  v.  Buckner,  87  Ky.  191,  8 
S.  W.  R.  196;  :Morvanfs  Succession, 
45  La.  Ann.  207.  13  S.  R.  349:  Jones 
V.  McClellan,  76  Me.  49;  Walston  v. 
White,  5  Md.  397  (1853);  Watson  v. 
Boylston,  5  Mass.  417;  Weston  v.  Fos- 
ter, 7  Met.  (48  Mass.,  1844',  397,  299; 
Tucker  t.  Seamen's  Aid  Society,  7 
Met.  (48  Mass.)  188;  Denfield's  Peti- 
tion, 156  Mass.  (1893),  265,  366;  Fos- 
ter V.  Smith,  156  Mass.  379,  385; 
Crocker  v.  Crocker,  11  Pick.  (Mass.) 
353;  Forbes  v.  Darling,  94  Midi.  631 
(1893),  54  N.  W.  R.  385;  Bradley  v. 
Bradley,  24  Mo.  311;  Johnson  v. 
Johnson,  18  N.  H.  594;  Brown  v. 
Brown,  43  N.  H.  17;  Nevius  r.  Mar- 
tin, 30  N.  J.  Law,  465;  In  re  Gordon's 
WiU,  50  N.  J.  Eq.  397,  26  Atl.  R.  268; 
Heater  v.  Van  Auken,  14  N.  J.  Eq. 
160;  Cleveland  v.  Havens,  13  N.  J. 
Eq.  101;  Brearly  v.  Brearly,  9  N.  J. 
Eq.  21;  Bradliurst  v.  Field.  63  Hun, 
U33,  18  N.  Y.  S.  535;  Arcularius  v. 
Geissenhainer,  3  Bradf.  (N.  Y.)  64; 
Mann  v.  Mann,  1  Johns.  Ch.  (N.  Y.) 
234;  Ralston  v.  Telfair,  3  Dev.  Eq. 
(N.  C.)  55;  Patterson  v.  Wilson,  101 
N.  C.  594,  8  S.  E.  R  841;  Field  v. 
Eaton,  1  Dev.  Eq.  (N.  C.)  383;  Wor- 


man  v.  Teagardon,  2  Ohio  St.  380; 
Starling  v.  Price,  16  Ohio  St.  29: 
McKay  v.  Hugus,  6  Watts  (Pa.),  345; 
Comfort  V.  llilather,  2  W.  &  S.  (Pa.) 
450;  Miller  v.  Springer,  70  Pa.  St.  209; 
Kelly  V.  Kelly,  25  Pa.  St.  460;  Tomp- 
kins v.  Merriman,  36  Atl.  R.  659,  155 
Pa.  St.  440,  33  W.  N.  C.  364;  Clarke 
V.  Clarke  (S.  C),  24  S.  E.  R.  202;  Gan- 
naway  v.  Tarpley.  1  Coldw.  (Tenn.) 
572;  Pett  v.  Railroad  Co.  (Tex..  1888). 
8  S.  W.  R.  203;  Coffin  v.  Elliott,  9 
Rich.  Eq.  (S.  C.)  344;  Durant  v.  Ash- 
more,  2  Rich.  Eq.  (S.  C.)  184;  Puller 
V.  Puller,  3  Rand.  (Va.)  83;  Nomse  v. 
Finch,  1  Ves.  Jr.  358;  Cambridge  v. 
Rous,  8  Ves.  13:  Bengough  v.  Walker, 
15  Ves.  514;  Herbert  v.  Reid,  16  Ves. 
484,  485,  489;  Attorney-General  v. 
Grote.  3  Mer.  310;  Maybank  v.  Brooks, 
1  Bro.  C.  C.  84;  Doe  v.  Kett,  4  T.  R. 
601;  Lord  Lansdowne's  Case,  10  Mod. 
98;  Cole  v.  Rawlinson,  1  Salk.  334; 
Bertie  v.  Lord  Falkland,  1  Salk.  331 ; 
Lowfield  v.  Stoneham,  2  Str.  1361; 
Chamberlayne  v.  Chamberlayne,  3 
Freem.  53;  Towers  v.  Moor,  2  Vern. 
98;  Vernon's  Case,  4  Rep.  4;  Chey- 
ney's  Case,  5  Rep.  686;  Clialloner  v. 
Bowyer.  3  Leon.  70,  73;  Bernasconi 
V.  Atkinson.  10  Hare.  345;  Goodtitle 
V.  Southern,  1  :\I.  &  S.  399;  Benson  v. 
Wittani,  3  Sim.  493;  Powys  v.  Mans- 
field, 3  My.  &  Cr.  359. 


§  909.]       UXCERTAINTY    OF    LA^'GUAGE TAEOL    EVIDENCE.  1307 

lie  was  surrounded  when  he  executed  it  or  when  he  died  and 
the  will  went  into  operation.  The  application  of  this  rule  is 
by  no  means  confined  to  the  judicial  construction  of  wills.  It 
applies  to  all  sorts  of  legal  instruments,  and  indeed  to  writ- 
ings of  all  kinds,  from  the  crudest  script  ever  penned  by  an 
almost  illiterate  peasant  to  the  wonderful  intellectual  produc- 
tions of  the  genius  of  Bacon  or  Shakespear.  The  reader  must 
know  something  of  the  circumstances  and  situation  of  the 
writer  and  of  the  history  of  his  times.  He  must  be  able,  at 
least  to  a  limited  extent,  to  place  himself  in  the  position  of  the 
writer.  The  court  construing  a  will  must  ascertain  the  inten- 
tion by  a  perusal  of  the  written  language  of  the  instrument, 
though  in  doing  so  it  is  not  compelled  either  to  close  its  eyes 
to  the  circumstances  under  which  it  was  written,  or  to  turn  a 
deaf  ear  to  parol  evidence  of  the  testator's  position  and  the 
condition  and  situation  of  his  property.  The  court  has  a  right 
to  demand  all  the  light  which  is  available  and  to  require  to 
be  furnished  with  all  the  material  information  which  is  ob- 
tainable. In  the  great  majority  of  cases  the  difficulty  in  un- 
derstanding the  will,  which  necessitates  its  construction,  arises 
only  upon  a  reference  to  extrinsic  circumstances.  So  much 
the  more  reason,  then,  that  there  should  be  a  full  revelation  of 
all  these  facts  and  circumstances,  whether  the  purpose  be  to 
identify  the  beneficiary  or  the  subject-matter,  or  to  determine 
the  testamentary  capacity  of  the  testator.  Thus,  in  that  very 
numerous  class  of  cases  where  it  appears  necessarily  by  parol 
evidence  that  there  is  no  person  precisely  answering  to  the 
name  or  to  the  description  of  some  legatee  named  in  the  will, 
<»r  that  at  his  death  the  testator  owned  no  property  precisely 
corresponding  to  property  devised,  parol  evidence  is  admitted 
to  show  the  circumstances  of  the  testator,  and  it  may  then  be 
jisccrtainiMl  whom  the  testator  meant  or  to  what  property  he 
r<.'h.'rred.' 

lElyton   Land  Co.  v.  McElrath.  3  Sliinn.  44  N.  E.  R  40.-,.  102  III.  124; 

C.  C.  A.  649.  r,:i   Fe.l.  H.  7fW,  2  U.  S.  Riclianls  v.  MilliT,  02  III.  417;  Ixjiieux 

App.  OMi;  BraiiH*r<l   v.   Cowdrey.  10  v.   Keller, '»  Iowa,  lUti:  ChaniberH  v. 

Conn.   10;    Hon.i'.s  Aj.jK-al,  :51    Conn.  Watson.  (50   Iowa,  ;{:«».  14  N.   W,   K*. 

;><);   Millinjcsl<*a  v.  .M«jor<'.  11  (ia.  ;{70;  :!:!():   Donoliue   v.   Donohuo,  54  Kan. 

Whito  V.  Holland.  J)2  (Ja.  210.  IMS.  K.  KKJ.    i:Jl»,   :]7   Par.    K.    WH;    Ernst  v. 

li.  H17;  Ilawkt'  v.  Cliicayo   K.  R.  Co.  I'<.st(>r  (Kan..  1H!(7),  4»   I'ac.   R.  r.27; 

(Hi..  1897),  40  N.  E.  R.  240;   Lonia.\  v.  All.n  v.  Van  MfU-r,  1  Mot.  (Ky.)  201: 


1398  LAW    OF   WILLS.  [§  910. 

§  910.  Patent  and  latent  ambiguities  defined  —  The  ad- 
missibility of  parol  evidence  to  explain  latent  ambiguities. 

The  competency  of  parol  evidence  to  explain  latent  ambigui- 
ties in  the  construction  of  wills  is  admitted.  A  latent  ambigu- 
ity, says  Lord  Bacon,  is  "  that  which  seems  certain  and  without 
ambiguity  for  anything  that  appeareth  upon  the  deed  or  in- 
strument, but  there  is  some  collateral  matter,  outside  of  the 
deed,  that  breedeth  the  ambiguit}'."  ^  A  patent  ambiguity  is 
one  "  that  appeareth  to  be  ambiguous  upon  the  face  of  the  deed 
.or  instrument."  In  every  case  the  court  is  entitled  to  be  placed 
in  possession  of  all  the  information  which  is  available  of  the 
circumstances  of  the  estate  and  family  of  the  testator  when  he 
made  his  will,  to  the  end  that  the  court  may  be  in  his  situation 
as  nearly  as  may  be,  and  may  interpret  and  understand  the 
will  as  he  would  if  he  were  living.-  "When  the  evidence  of  ex- 
trinsic circumstances  is  all  in,  it  may  appear  that  a  description 
in  the  will  which  was  intended  by  the  testator  to  apply  to  one 
olject  or  thing  is  applicable,  with  more  or  less  certainty,  to  sec- 
eral  ohjects  or  things.  This  is  a  case  of  latent  ambiguity,  and 
parol  evidence  is  then  received  to  ascertain  which  person  or 
thing  was  intended  b}''  the  testator.  "Where  the  ambiguity  is 
latent,  it  is  created  by  evidence  of  extrinsic  facts,  and  the  same 
evidence  is  admissible  to  remove  it.  But  such  evidence  is  not 
direct  evidence  of  intention,  and,  if  the  rule  in  relation  to  the 

Smith  V.  Hoi  den,  58  Kan.  535;  Dar-  456,  31  N.  E.  R.  332;  White  v.  Hicks, 
nail  V.  Adams,  13  B.  Mon.  (Ky.)  278;  33  N.  Y.  383;  Terpenning  v.  Skinner, 
Lamb  v.  Lamb,  11  Pick.  (Mass.)  375;  30  Barb.  (N.  Y.)  373;  Doe  v.  Provost, 
Brown  v.  Saitonstall,  3  Met.  (Mass.)  4  Johns.  (N.  Y.)  61;  Gannaway  v. 
426;  Brown  v.  Thorndike,  15  Pick.  Tarpley,  1  Coldw.  (Tenn.)  572;  Woot- 
(Mass.)  400;  Waters  v.  Howard,  1  Md.  ton  v.  Ptcdd,  12  Gratt.  (Va.)  196,  205, 
Ch.  112;  McHugh  v.  Fitzgerald,  103  207;  Jones  v.  Quattlebaum,  31  S.  C. 
Mich.  21;  Gilliam  v.  Chancellor,  43  600,  9  S.  E.  R.  982;  Cogdell  v.  Cog- 
Miss.  437;  Gregory  t.  Cowgill,  19  Mo.  dell,  3  Des.  (S.  C,  1811),  346,  364;  In  re 
415;  Mersman  v.  Mersman,  136  Mo.  Gilniore's  Estate.  154  Pa.  St.  523,  26 
244,  258;  Little  v.  Giles,  25  Neb.  313,  Atl.  R.  614;  Westhofif  v.  Dracourt,  3 
41  N.  W.  R.  186:  Goodhue  v.  Clark,  Watts  (Pa.).  240. 
37  N.  H.  525;  Morgan  v.  Dodge,  44  i  Bacon's  Maxims,  Reg.  23.  "^m- 
N.  H.  2.55;  Van  Winkle  v.  Van  Hou-  biguitas  verborum  latens  verifica- 
teu,3  N.  J.  Eq.l72;  Halsted  v.  Meeker,  Hone  s^ppletur;  nam  quod  ex  facto 
18  N.  J.  Eq.  136;  Paxson  v.  Potts,  3  oritur  ambiguum  verification e  faeti 
N.  J.  Eq.  136;  Dey  v.  Dey,  19  N.  J.  toUitur." 
Eq.  137;  Barnard  v.  Barlow,  50  N.  J.  2  See  ante,  §  909. 
Eq.  131;  Morris  v.  Sickle,  133  N.  Y. 


§  910.]   UNCEKTAINTY  OF  LANGUAGE PAKOL  EVIDEXCE.    1399 

reception  of  parol  evidence  to  solve  latent  ambiguities  per- 
mitted the  introduction  of  such  evidence  only,  it  would  not 
require  a  separate  discussion,  as  it  would  be  synonymous  with, 
the  rule  that  extrinsic  facts  are  always  admissible  to  explain 
the  lano-uao-e  of  the  will,  regardless  of  the  nature  of  the  am- 
biguity,  whether  it  be  patent  or  latent.  The  principle  goes 
much  further  than  this.  It  is  not  to  be  confined  to  the  admis- 
sion of  facts  appertaining  solely  to  the  circumstances  of  the 
testator,  and  which  merely  tend  to  show  the  meaning  of  his 
words.  Under  it  evidence  showing  or  suggesting  a  direct  in- 
ference  of  intention  as  to  the  things  or  objects  disposed  of  in 
the  will,  including  tlte  testator  s  declarations  of  intention  uttered 
at  the  execution  of  the  will,  and,  according  to  some  of  the  cases, 
subsequently  thereto,  are  received  to  assist  the  court  in  dispos- 
ing of  the  latent  ambiguity,  by  showing  which  of  several  per- 
sons or  things  answering  to  the  description  was  intended  by 
the  testator.  Hence  it  will  be  seen  that  there  may  be,  and 
usually  is,  an  essential  and  radical  difference  between  the  evi- 
dence which  raises  or  creates  the  latent  ambiguity,  i.  e.,  proof 
of  extrinsic  circumstances  of  the  case,  and  the  evidence  which 
removes  it  or  explains  it,  and  which  may  be  declarations'  of 
the  intention  of  the  testator  as  well  as  evidence  of  circum- 
stances.^ 

1  Vandiver  v.  Vandiver  (Ala.,  1897),  360,  367;  Turner  v.  Hallowell,  76  :Me. 

22  S.  K.  lo-l;  Brewster  v.  McCall,  15  527,  531;  Stockley  v.  Gordon,  8  Md. 

Conn.  292;    Spencer  v.    Higgins.  22  486:  Stackpole  v.  Arnold,  11  Mass.  29; 

Conn.  521;  Rogers  v.  Rogers,  78  Ga.  Morse  v.   Stearns.   131   Mass.  389,  3 

688,  3  S.  E.  R.  451;  Pinney  v.  Kevins,  Am.  Prob.  R,  51;  Marshall  v.  Haney. 

33  Atl.  R  591,  66  Conn.  141:  Wliit-  4  Md.   498;    Love  v.   Buchanan,   40 

comb  V.  Rodman,  156  111.  116,  122;  Miss.  758;  Ilalsted  v.  Meeker,  18  N.  J. 

Decker  v.  Decker.  121  III  341,  12  N.  Eq.  136  (1866);  Burnet  v.  Burnet,  30 

E.  R  750;  Grimes  v.  Harmon,  35  Ind  N.  J.  Eq.  395  (1879);  Griscom  v.  Even.s. 

246;  Groves  v.  Gulp,  132  Ind.  186.  187;  40  N.  J.  Law.  402,  1  Am.  Prob.  R  133, 

Skinner  v.  Harrison,  116  Ind.  139.  18  137;  Hyatt  v.Pugsley.23  Barb.  (N.  Y.) 

N.  E.  R  529;  Dennis  v.  Holsapide,  47  285;    Mann   v.    Mann,   1    Johns.    Ch. 

N.  E.  R  631,  632;  Fitzpatrick  v.  Fitz-  (N.  Y.)  231;  Klock  v.  Stevens,  45  N. 

jjatrick,  36  Iowa.  674;  Covert  v.  S.}-  Y.  S.  6U3;  Bradiiurht  v.  Field,  32  N.  E. 

Jjern.  73  Iowa,  .564,567,35  N.  W.  R  R   113.   135   N.  Y.  564;  Worman  v. 

636;  Dauglicrty  v.   Rogers,  119  Ind.  Teagardeii,  2  Oliio  St,  3SU;  Boggs  v. 

254.258;  Cruse  v.  Cunningham,  79  Ind.  Taylor.  2(5  (Jhio^'St.  604;  Moreland  v. 

402,405;  Black  v.  Richards.  95  Ind.  Brady,8Oreg.303:  Senger  v.  Sengors 

184, 189;  Sturgis  v.  Ward,  122  Ind.  134,  Ex  r,  81  Vju  694-697;  Hawkins  v.  (Jar- 

136;  Jackson  v.  Payne.  2  Met.  (Ky.)  land.  76  Va.  119,3  Am.   Pro.  R  550; 

670;    Cotton   v.   Southwick,   66    Me.  Morgan  v.  Burrows,  45  Wi.s.  211,  217, 


1400  LAW    OF    WILLS.  [§  010. 

It  is  not  necessary,  in  order  that  parol  evidence  may  be  re- 
ceiveil,  that  tlie  description  in  the  will  sliall  i\\)p\j  jn^ecisel'i/ 
and  in  every  reiiped  to  two  or  more  persons  or  things.  In  some 
cases  where  the  rule  has  been  invoked,  two  persons  of  exactly 
the  same  name,  or  answering  precisely  to  the  same  description, 
have  claimed.^  But  the  law  requires  only  tliat  the  testament- 
aiy  description  shall  apply  to  the  several  objects  with  legal 
certainty,  so  that  the  mind  of  the  court  is  satisfied.  The  de- 
scription, whether  by  name,  locality  or  occupation,  must  be 
sufficient  to  fairly  satisfy  the  court  that  the  testator  may  have 
meant  either  of  the  several  persons  or  things  which  are  re- 
vealed by  the  extrinsic  evidence.  For  if  the  description  of  the 
person  or  thing  be,  in  the  opinion  of  the  judge  construing  the 
will,  wholl}''  inapplicable  to  the  subject  intended,  or  which  is 
claimed  to  be  intended,  parol  evidence  is  not  received  to  show 
Avho  or  what  the  testator  did  intend.  Thus,  if  a  benefit  is 
claimed  by  several  persons,  all  answering  the  description  of  the 
will  in  one  or  more  material  particulars,  though  none  of  them 
answers  to  it  perfectly  and  accurately  in  every  particular,  ex- 
trinsic evidence  is  received,  including  expressions  of  intention.- 
In  these  cases,  which  are  extremely  numerous,  the  description, 
so  far  as  it  accurately  applies  to  any  person,  applies  to  all  the 
claimants  alike,  and  so  far  as  it  is  inaccurate  it  applies  to  no 

220;  Sherwood  v.  Sherwood,  45  Wis.  tlie  brother  had  two  grandsons  by 

oo7,  363;  Patch  v.  "White,  117  U.  S.  the  name  of  John.    So  in  Lord  Chey- 

217,  219;  GiUner  v.  Stone,  120  U.  S.  ney's  Case,5  Rep.  68, b,it  was  held  that 

586, 588 ;  Hannon  v.  Mountain,  23  Fed.  if  a  man.  havinj^  had  two  sons  named 

R.  5,  11.  John,  and  believing  that  the  elder  of 

1  Jones  V.  NewTiian,  W.  Bl.  60.  The  the  two  is  dead,  made  a  devise  to 

gift  was  to  John  Cluer,  of  Calcot,  "  his  son  John,"  the  younger  son  may 

and  two  persons  answering  exactly  sliow  his  father's  knowledge  of  the 

to  the  name  and  description,  father  death  of  tiie  other  by  his  declara- 

and  son,  claimed  the  legacy.    A  sim-  tions.  and  his  meaning  to  give  the 

ilar  case  was  that  of  a  devise  to  "  W.  land  devised  to  himself. 

R..  my  farming  man,"  and  the  testa-  -'ximg^   jn  Careless  v.  Careless,  1 

tor  had  two  men  oia  his  farm  of  that  Mer.   384.  where  the   devise  was  to 

name.     Reynolds  v.  Whelan,  16  L.  J.  "  Robert  Careless,  my  nephew,  son  of 

Ch.  434.    In  Doe  d.  Allen  v.  Allen,  13  Joseph  Careless,"  and   the  testator 

Ad.  &  E.  451,  M-liere  the  devise  was  had  no  brother  Joseph,  but  he  had 

to  "John  A.,  grandson  of  my  brother  two  brotliers  John  and  Thomas,  both 

Thomas,"  the  declarations  of  the  tes-  mentioned  in  the  will,  each  of  whom 

tator  were  admitted  to  show  which  had  a  son  named  Robert,  parol  evi- 

grandson  was  intended,  though  made  dence  of  extrinsic  facts  and  declara- 

loug  subsequent  to  the  will,  where  tions  of  intention  was  received. 


§  911.]   UNCERTAINTY  OF  LANGUAGE PAROL  EVIDENCE.    llUl 

one.     Tender  this  class  of  cases  may  be  ranged  those  of  the  mis- 
nomer of  a  charitable  corporation.^ 

§  911.  The  adniissibility  of  parol  evidence  to  identify  the 
subject-matter  of  a  lei^acy  or  devise. —  The  testator,  in  describ- 
ing the  property  of  which  he  disposes  in  his  will,  must,  of  neces- 
sity, employ  terms  which  suggest  or  im[)ly  an  existing  condition 
of  affairs.  The  words  of  his  will  always  siujgest  facts  and  cir- 
cumstances which  are  exti^insic  to  it^  and  things  that  are  not, 
and  cannot  be,  identified  by  anything  contained  in  it.-  If  he 
describes  his  property  somewhat  vaguely  or  generallj^,  parol 
evidence  is  necessary,  not  to  contradict  the  meaning  of  the 
words,  to  add  to  or  to  overcome  his  express  intention,  but  to 
confirm  and  elucidate  that  intention  by  showing  what  the 
Avords  mean.  Thus,  in  the  common  case  of  a  devise  of  a 
"  house," '  or  of  a  "  farm,"  *  or  of  land  of  any  sort  described  as 
"  noio  occujned "  by  the  testator,^  or  a  devise  of  my  '•  home- 
stead," "home  place,"  or  home  farm,"^  or  a  devise  of  land 


^Ante,  %  831.  The  leading  English 
case  upon  the  question  of  the  admis- 
sibility of  the  declarations  of  the  tes- 
tator in  cases  of  latent  ambiguities  is 
that  of  Doe  d.  Hiscocks  v.  Hiscocks, 
5  Mees.  &  Wei.  363,  decided  in  1839. 
The  devise  was  "  to  the  grandson  of 
the  testator,  John  H.,  eldest  son  of 
John  H."  Prior  to  the  execution  of 
the  will  .John  H.  had  twice  married. 
By  his  first  wife  he  had  one  .son 
named  Simon.  By  his  second  wife 
lie  had  an  eldest  son  Jolin  H.  and 
other  chiMren.  The  court,  in  reji^ct- 
ing  parol  evidence  of  instructions 
given  by  the  testator  to  the  draughts- 
man and  his  declarations  of  intention 
after  execution  to  show  wiiich  of 
these  two  the  testator  meant,  said: 
"There  is  but  one  case  in  wliich  the 
testator's  dei;laratioiis  as  evidence  of 
intent  can  profHTly  bi*  admittnl,  and 
tliat  is  whf'rethe  iiifaningof  tlietesta- 
tors  words  is  nt'lllier  aiiit<ignous  nor 
obwure,  and  wiicre  the  devise  is  on 
tliH  face  of  it  |)(.'rf<!(;t  and  iiitidligible, 
but  from  some  of  tiie  circumstances 
admitted    in     proof    an    ambiguity 


arises  as  to  which  of  the  two  or  more 
things  or  persons,  each  answering  the 
words  in  the  will,  the  testator  in- 
tended to  express.  Though  it  was 
clear  he  meant  one  only,  both  were 
equally  denoted  by  the  words,  wlien 
there  arose  an '  equivocation,'  and  evi- 
dence of  previous  intention  might  be 
received  to  solve  this  latent  ambigu- 
ity, for  the  intention  sliowed  what 
he  meant  to  do:  and  when  you  knew 
that,  you  immediately  perceived  he 
had  done  it  by  the  words  he  had 
used,  and  which,  in  their  ordinary 
sense,  might  bear  that  construction." 

2  Ante,  %  909. 

8  Ante,  %  302, 

*  Ante,  %  303. 

^Ante,  g  30.");  Jackson  v.  Sill,  11 
Johns.  (N.  Y.)  20\,  202;  Brown  v. 
Saltonstall,  3  Met.  (Ahiss.)  423,  427; 
Tliomsoii  v.  Tlioms(}ii,  IIT)  Mo.  50,  21 
S.  W.  R.  10S5.  1128;  Horton  v.  Lee, 
99  N.  C.  227.  OS.  R  It.  401. 

»fJ(K.dtill(«  V.  H.'idford  (1H13).  1  Mce. 
«fe  Wt'l.  299.  See  ca.so«  fully  criteil 
ante,  i  304. 


1402  LAW    OF    WILLS.  [§  911. 

which  the  testator  states  he  purchased  of  A.  or  which  he  re- 
ceived from  his  father  by  will,^  it  cannot  be  known,  where  the 
description  is  so  indefinite  and  vague,  wdiat  property  passes, 
until  it  shall  be  ascertained  by  parol  what  house,  farm  or  home- 
stead was  occupied  or  owned  by  the  testator  when  he  made 
his  will,  or  w^hat  land  he  purchased,  or  received  under  the  will 
of  his  father. 

Again,  in  disposing  of  his  personal  estate  the  testator  may 
bequeath  to  A.  "  his  money,"  ^  or  "  his  furniture," '  or  his  "  stock 
on  a  farm," *  or  "  the  plate  at  his  banker's,"^  and  no  one  can  tell 
W'hat  personal  property  passes  until  the  condition  of  the  per- 
sonal estate  of  the  testator  is  ascertained  by  parol  evidence. 

All  these  terms  are  uncertain  and  fluctuating  in  their  mean- 
ing, according  to  the  circumstances  of  each  case  and  the  situ- 
ation of  the  person  employing  them.  Each  may  mean  much 
or  little.  And  though  where  the  testator  has  employed  ordi- 
nary words  it  will  be  presumed  that  he  has  used  them  in  their 
strict  primary  sense,  and  parol  evidence  will  not  be  received 
to  show  that  he  has  used  them  in  another  sense,  or  to  extend 
their  meanino;  where  the  testator  has  used  broad  and  vamie 
words,  parol  evidence  is  competent  to  enable  the  court  to 
ascertain  how  much  or  how  little  the  testator  included  under 
these  general  terms.  This  apparent  exception  to  the  rule  which 
excludes  parol  evidence  is  usually  formulated  by  the  decisions 
under  the  principle  that  parol  evidence  is  admissible  to  identify 
the  subject-matter  of  a  devise  or  legacy.  And  not  only  are 
the  circumstances  of  the  property  of  the  testator  received  in 
evidence  for  this  purpose,  but  his  declarations,  whether  uttered 
prior  or  subsequent  to  the  execution  of  the  will,  are  received 
where  they  show  or  tend  to  show  his  habitual  use  during  life 
of  the  terms  employed  in  his  will  to  designate  the  property  in 
question.® 

1  Baker's  Appeal,  115  Pa.  St.  590,  8  336;  Groves  v.  Gulp,  133  Ind.  186,  31 

Atl.  R.  630;  Ogsbury  v.  Ogsbury,  115  N.  E.  E.  569;  Hartwig  v.  Schriefer 

N.  Y.  290.  (Ind.,  1898),  42  N.  E.  R.  471:  Stewart 

2^5  312.  V.  Stewart,  90  Iowa,  020,   627;  Eck- 

3  §314  fordv.  Eckford,  91  Iowa,  54,  .58  N. 

3§  315.  W.  R.  1093;  Chambers  v.  Chambers, 

*§  316.  69  Iowa.  389,  14  N.  W.  R.  330;  Sever- 

^Flannery  V.  Hightower  (Ga.,  1898),  son  v.  Severson.  08  Iowa,  650;  Wil- 

25  S.  E.  R.  371;  Swift  v.  Lee,  65  111.  lett  v.  Carroll,  13  Md.  459;  Warner  v. 


§  oil.]       TJNCEKTAINTT    OF    LAKGUAGE PAROL    EVIDENCE.         1-103 

Parol  evidence  is  always  admissible  if  offered  for  the  pur- 
pose of  identifying  the  objects  or  monuments  to  which  the  tes- 
tator has  referred  in  describing  the  boundaries  of  the  Land 
which  he  has  devised.  If  he  gives  a  farm,  which  is  described 
as  bounded  by  a  road  or  a  stream,  or  by  a  line  running  along 
the  middle  of  a  ditch  from  one  post  to  another  post,  or  from  a 
heap  of  stones;  or  if  he  describes  the  land  as  bounded  by  the 
land  of  A.,  or  employs  similar  terms  applicable  to  the  bound- 
aries of  the  land,  the  gift  will  fail,  unless  extrinsic  evidence  is 
received  to  identify  the  natural  and  artificial  objects  which  are 
mentioned.  The  locality  of  the  monuments  mentioned  is  only 
to  be  learned  from  the  testimony  of  persons  who  are  familiar 
with  them.^ 

Parol  evidence  is  received  necessarily  to  show  what  proper!}'" 
is  included  in  a  vague  description,  but  never  to  add  to  or  to 
contradict  a  description  which,  though  vague  and  general,  is 
plain  and  intelligible.  Thus,  while  it  may  be  shown  by  parol 
what  property  the  testator  meant  to  include  under  a  devise  of 
a  house  or  farm  now  occupied  T)y  Jiim.^  it  cannot  be  shown  by 
parol  that  the  testator,  when  he  gave  land  described  as  occu- 
pied by  him,  intended  to  include  land  occupied  hy  others^  thowjh 
owned  hy  tlie  testator?  N"or  can  it  be  shown,  where  he  expressly 
excepts  land  sold  or  leased  from  a  devise,  that  he  did  not 
mean  to  except  land  which  was  under  lease  at  the  date  of  the 
will,'  or  that  when  he  gives  all  his  land  he  meant  to  devise  a 
part  and  not  the  whole.  Hence,  while  parol  evidence  is  re- 
ceivable to  explain  the  terms  of  a  description  and  to  identify 
what  property  may  come  under  it,  evidence  is  not  receivable 

Miltenberger,  21  Md.  264;  Frick  v.  for,   etc.,   to  A."  was  a  bond  wliioli 

Frick,   82  Md.   218,   33  Atl.   R   462;  was  made  to  B.  and  nieroly  deliv- 

Riggs  V.  Myers,  20  IMo.  239;  Creasy  ered  to  A.  .as  the  ap;('nt  of  B.    Smith 

V.  Alverson,  43  SIo.  13;  Seebrock  v.  v.  Wyckoff,  3  Sandf.  Ch.  (N.  Y.)  77; 

Fedawa,   33   Neb.   413;    Hawkins  v.  Scott  v.  Neeves,  77  \Vis.  305,  45  N. 

YouHK',  52  N.  J.  Eq.  508,  28  Atl.  R  W.  R  421. 

511;  li^'ders  v.   Wheeler,   22  Wend.  i  Nichols  v.  Lewis,  15  Conn.  137; 

(N.  Y.)   148;    Pritchard   v.   llirks,   1  Storer    v.    Freeman,    6    Mas.<i.    440: 

Paige  (N.  Y.),  270;  Crubb  v.  P'oust,  Brownfield  v.  Brownfield.  20  Pa.  St 

99  N.  C,  286.  6  S.  K  R  103;  Ashworth  55. 

V.   Ashworth,    12   Ohio  St.    381;  Mc-  UJrown  v.  Saltnnstall,3^r.'t.  CMass.) 

Keou«h  V.  McKeough  (Vt.,  1H97),  37  426;  Bethoa  v.  IVthea,  1  Hill  (S.  C), 

Atl.   R   275.     Parol   evidence   is  ad-  (51. 

niissil)ie  to  kIiow  that  a  l)ond  which  ^(^hase  v.  Stockett,  72  Md.  235,  19 

i.s  descrilied  in  tlie  will  as  "  my  bond  Atl.  R  Tdl. 


1404  LAW    OF    WILLS.  [§  912. 

cither  for  the  purpose  of  broadenin<^  or  narrowing  a  descrip- 
tion under  the  guise  of  exphiining  it.  So  when  the  testator 
devises  hind  purchased  from  or  occuj^ied  by  A.,  it  is  not  com- 
petent to  show  that  he  meant  to  include  land  not  purchased 
from  or  not  occupied  by  A.  To  receive  parol  evidence  for  such 
a  purpose  would  be  equivalent  to  inserting  a  devise  of  the  land 
in  the  will.  And  where  the  description  of  the  property  devised 
is  so  vague  and  indefinite  that  its  identification  is  impossible, 
parol  evidence  will  not  be  received  to  show  what  the  testator 
intended  to  give.  Thus,  where  the  testator  devised  a  "  small 
farm  in  Wa3me  county,  near  the  Missouri  line,"  and  owned  no 
land  at  all  in  Wayne  county  except  a  small  tract  which  was 
connected  with  a  larger  farm  situated  in  another  county,  the 
court  held  that  parol  evidence  should  not  be  received  to  show 
that  the  small  farm  alluded  to  was  the  one  in  the  other  county, 
or  to  show  that  the  two  were  connected.^ 

§  912.  Parol  evidence  to  show  mistakes  and  supply  oniis- 
sious. —  The  power  of  a  court  of  equity  to  correct  mistakes, 
transpose  words  or  clauses  or  supply  words  omitted,  where  the 
necessity  for  it  is  apparent  upon  the  face  of  the  will,  is  admitted.- 
If  it  is  api^arent  fro7n  the  context  that  a  word  or  a  clause  has  heen 
omitted  from  the  loill  it  may  he  supplied.  But  parol  evidence  is 
never  receivable  to  supply  single  words  or  clauses  where  the 
omission  is  not  apparent  on  a  reading  of  the  will.  Thus,  it  can- 
not be  shown  by  parol  that  the  testator  stated  that  he  would 
give  or  had  given  a  legacy  to  a  person  whose  name  is  not  men- 
tioned," or  that  the  draughtsman  of  the  will  had  forgotten  to 
insert  a  legacy  which  the  testator  meant  to  give;*  nor  can  the 
amount  of  a  legacy  precisely  stated  be  increased  or  diminished 
by  parol  evidence,  no  matter  how  clear  and  convincing  'such 
evidence  may  be. 

AVhere  a  testator  has  expressed  an  intention  to  give  a  legacy 
to  some  person,  but  has  left  the  legatee's  name  blank,  as  a  leg- 
acy to  "  Lady ,"  ^  or  the  amount  blank,  or  where  he  ap- 

1  Christy  v.  Badger,  73  Iowa,  581,  SHunt  v.  Hort,  3  Bro.  C.  C.  311.  See 
34  N.  W.  R.  427.  also  Everett  v.  Carr,  57  Me.  325,  331 ; 

2  See  ante,  %%  356-368.  Lefevre  v.  Lefevre,  59  N.  Y.  434,  440; 
^Comstock  v.Hadlyme,  8Conn.  254  Baylis  v.  Attorney-General,  2  Atk. 
<  Andress  v.  Weller,  3  N.  J.  Eq.  604.     239;  Ulrich  v.  Litchfield,  3  Atk.  373, 

And  see  Brown  v.  Selwyn,  Ca.  Temp.  374;  Taylor  v.  Richardson,  3  Drew.  16. 
TaL  240. 


§  912.]       UNCERTAINTY    OF    LANGUAGE PAEOL    EVIDENCE.  1405 

points  an  executor,  but  omits  to  name  him,^  or  where  he  has 
omitted  to  state  that  a  legacy  is  upon  condition,  or  is  given  in 
lieu  of  dower,-  or  to  satisfy  some  other  claim  which  the  legatee 
has  against  the  testator,  parol  evidence  is  not  received  to  supply 
the  omission.'  For  under  the  rule  that  parol  evidence  cannot 
be  employed  to  vary  or  add  to  a  will,  it  is  incompetent  to  show- 
by  the  declarations  of  the  testator  or  other  extrinsic  evidence 
that  the  testator  has  by  his  own  mistake  or  that  of  some  other 
person  given  a  legacy  of  less  value  or  of  a  different  character 
from  that  which  he  in  fact  actually  meant  to  give.^  Thus,  where 
a  testator  owned  land  in  A.  county  and  also  in  B.  county,  both 
of  which  he  intended  to  devise  to  his  wife,  but,  as  was  conclu- 
sively proved,  the  description  of  the  land  in  B.  was  inadver- 
tently stricken  out  in  copying  the  will,  parol  evidence  was 
rejected,  though  it  appeared  that  the  final  copy  of  the  will  had 
never  been  read  to  the  testator,  and  that  the  original  draft  in 
his  own  hand  included  the  property  in  B.  county.^  In  another 
case  £10,000  was  directed  to  be  divided  equally  between  A. 
and  B.  The  draughtsman  drew  two  clauses,  in  each  of  which, 
by  his  mistake,  £10,000  was  given  to  A.  The  name  of  B.  was 
wholly  omitted  from  the  draft  and  also  from  the  engrossment, 
and  the  Avill  was  executed  with  the  mistake  uncorrected.    The 

1  Everett  v.  Carr,  57  Me.  325.  333;  Johnson,  128  Intl.  93.  27  N.  E,  R.  340; 

"SVinne  v.  Littleton,  2  Ch.  Ca.  51.  Sherwood  v.  Slierwood.  4G  Wis.  357, 

"-Ante,  ^734  361;    Thomson  v.  Thomson,  115  Mo. 

3  Equity  has  no  power  to  reform  a  56,  21  S.  W.  R.  1085, 1128;  In  re  Swin- 
will  or  to  receive  parol  evidence  to  burne,  16  R.  L  208,  14  Atl.  R  850. 
make  a  will  speak  a  different  Ian-  ^If  a  testator  employ  another  to 
;^age  than  that  inserted  by  the  tes-  convey  his  intent  ioti  in  a  will  in  tech- 
tator.  merely  on  proof  that  the  testa-  nical  language,  and  that  other,  aside 
tor,  or  some  one  to  whom  he  delegated  from  any  question  of  fraud,  makes  a 
the  task  of  drawing  the  will,  has  in-  mistake  in  doing  so,  the  mistake  is 
serted  or  omitted  sometliing  by  mis-  the  mistake  of  tlie  employer,  and  the 
take.  The  mistake  or  tlie  omi.ssion  language  will  operate  as  if  it  had 
must  be  apparent  upon  the  face  of  been  cliosen  by  the  testator.  Collins 
the  will.  Otlierwi.se  there  can  be  no  v.  F2lstone,  1  Rej).  458.  (1S'J3)  Prob.  1. 
relief  in  equity.  Campbell  v.  Cam |)-  *Newburgh  v.  Newburgh,  5  Mad. 
bell,  138  III.  612,  28  N.  E.  R.  1080;  364,  1  M.  &  Sc.  352.  See  also  the  case 
Bingel  v.  Volz,  142  III.  214.  31  N.  E.  of  Langston  v.  Laiigston,  8  Bligh 
R.  13;  Worrell  v.  Patton,  m  111.  254;  (N.  S.).  1(57,  where  two  lines  of  a  ma- 
Judy  V.  Gillxfrt.  77  Ind.  W\,  '.)'.);  Cnise  tt'rial  provision  were  onjittetl  in  the 
V.  Cunningham,  7!)  Ind.  402.  10:1;  Funk  final  copy  of  the  will.  Filzi)Mtrick 
V.  Davi.s,  103  Ind.  573,  574;  Sturgis  v.  v.  Fitzpatri(;k,  36  Iowa,  674,  G76-(M?6. 
Work,  122  Ind.  134,  135;  Johuhon  v. 


1406  I>AW   OF    WILLS.  [§  913. 

name  of  A.  was  stricken  out  of  one  of  the  clauses  by  the  court, 
as  the  error  was  apparent  upon  the  face  of  the  will.  But  the 
name  of  B.  coukl  not  be  inserted  on  parol  evidence  to  give  him 
a  legacy  not  given  by  the  will.^     So  where  a  fund  was  to  be 

divided  "among  nephews  and  nieces  A.  and  B. ,"  the  gift 

Avas  void  though  the  testator,  after  mentioning  nephews  and 
nieces  in  the  plural,  named  only  one  of  each  class.  He  left  a 
l)lank  for  the  purpose  of  inserting  names,  but  as  he  never  did 
this,  the  names  cannot  be  supplied  by  parol.^ 

§  913.  Parol  evidence  to  explain  the  meaning  of  words, — 
A  testator  is,  prima  facie,  presumed  to  have  emplo3^ed  the 
words  in  which  he  has  expressed  his  intention  in  their  strict  and 
p>riinary  sense.  If,  therefore,  nothing  appears  in  the  context 
which  shows  that  he  has  used  them  in  another  sense,  and  always 
provided  that  they  possess  a  sensible  meaning  when  referred  to 
extrinsic  circumstances.,  parol  evidence  is  not  received  to  show 
that  the  testator  has  used  them  in  some  other  sense.  This  rule 
applies  to  technical  words.  Unless  it  shall  appear  from  the 
context  that  the  testator  has  used  technical  words  in  a  non- 
technical sense,  or  unless,  Avhen  viewed  in  the  light  of  the  sur- 
rounding circumstances,  the  technical  words  have  no  meaning, 
parol  evidence  is  not  received  to  correct  or  contradict  their 
ordinary  meaning,  and  to  show  that  the  testator  has  used  them 
with  a  secondary  meaning.' 

1  In  re  Goods  of  Boehm,  (1891)  Prob.  Ex'rs  v.  Hadley,  50  N.  J.  Eq.  547,  25 

247.  Atl.   R    325;    Lasher  v.   Lasher,   13 

2Greig  v.  Martin,  5  Jur.  329,  330.  Barb.  (N.  Y.)  106,  109,  110;  Gardner 

3  Johnson  v.  Johnson,  32  Ala.  637;  v.  Heyer,  2  Paige  (N.  Y.),  1;  Tuttle  v. 

Appeal  of  Allen.  69  Conn.  702,  38  Atl.  Berryman,  94  Ky.  553,  23  S.  W.  R. 

R.    701,    702;     Ruggles    v.    Randall  345;  Van  Nostrand  v.  Moore,  52  N.  Y. 

(Conn.,   1897),   38  Atl.   R.   885,    887;  12, 18;  Rivenettv.  Bourquin,  53  Mich. 

Jackson  v.  Alsop,  34  Atl.  R.  1106,  67  10;   Porter  v.  Porter,  50  Mich.  450; 

Conn.  249:  AVillis  v.  Jenkins,  30  Ga,  Rupp  v.  Eberly,  79  Pa.  St.  141,  145; 

169;  Daugherty  v.  Rogers,  119  Ind.  France's  Estate,  75  Pa.  St.  220,  225; 

254,  260;  Ridgevvay  v.  Lanphear.  99  Harrison  v.  ]\Iorton,  2  Swan  (Tenn.), 

Ind.  251,  252;  West  v.  Rassman,  135  251,    261;    Smith  v.   Bell,   6    Peters 

Ind.  278,  290;  Wheeler  v.  Dunlap,  13  (U.  S.),  68;  Given  v.  nilton,  95  U.  S. 

B.  Mon.  (Ky.)  292 ;  Osgood  v.  Lovering,  591 ;  Hamilton  v.  Ritchie,  (1894)  App. 

33  Me.  464,  469;  Golder  v.  Chandler,  Cases,  310;    Mounsey  v.  Blamire,  4 

87  Me.  63,  32  Atl.  R.  784;  Crocker  v.  Russ.  484;  Shore  v.  Wilson,  9  CI.  & 

Crocker,  11   Pick.   (Mass.)  252;    Mc-  Fin.  558;  Barrow  v.  Methold,  1  Jur. 

Queen  v.  Lilley.  131  Mo.  9,  17:  Love  (N.  S.)  194;  Crosley  v.  Clare,  3  Sw. 

V.  Buchanan,  40  Miss.  748;  Marshall's  320;  Brown  v.  Brown,  11  East,  441; 


§  913.]       XTXCEKTAIXTY    OF    LANGUAGE PAEOL    EVIDENCE.         1407 

Thus,  it  is  settled  that,  wliere  the  testator  devises  his  real 
property  to  his  heirs^  or  his  personal  property  to  his  next  ofhin, 
or  to  children,  grandcldldren  or  other  classes  of  relations,  parol 
evidence  is  not  to  be  received  to  show  an  intention  on  his  part 
to  include  in  the  classes  mentioned  any  person  who  does  not 
properly  belong  there.-  By  parol  evidence  is  here  meant  direct 
evidence  of  the  intention  of  the  testator,  consisting  of  his  dec- 
larations  introduced  for  the  sole  purpose  of  contradicting  the 
plain  meaning  of  the  words  of  his  will.  Thus,  parol  evidence 
of  the  language  of  the  testator  is  not  admissible  to  show  that 
he  has  declared  that  his  grandchild  should  take  under  a  gift  to 
children  as  a  class ; '  that  a  stepchild  should  take  under  such  a 
devise,*  or  that  a  nephew  of  his  wife  should  take  under  a  gift 
to  his  own  nephews.-^  But  the  condition  of  the  testator's  family 
"would  be  relevant  and  may  be  proved  by  parol  in  the  first  ex- 
ample to  show  that  he  had  no  living  children  when  he  made 
the  will,  but  that  he  had  adopted  a  grandchild  as  his  own,  or 
that  a  stepchild  was  commonly  treated  as  a  child  by  him,  and, 
in  the  last  instance,  that  his  wife's  nephew  lived  with  him  and 
that  he  treated  him  as  his  nephew,  and  that  he  never  had  any 
nephews  by  consanguinity. 

So  the  meaning  of  peculiar  words  which  are  not  in  general 
use,  or  which  are  commonly  employed  in  the  profession  or  busi- 
ness to  w^hich  the  testator  belongs,  may  be  exphiined  by  parol. 
Thus,  where  the  testator,  being  a  sculptor,  bequeathed  his 
"mods."  to  A.,  the  evidence  of  other  sculptors  was  received 
to  show  the  custom  of  the  pTofession,  though  the  declarations 
of  the  testator  were  rejected.®  So,  also,  if  the  testator  employed 
abbreviations  in  his  will,^  as  when  he  was  a  jeweler  and  em- 
ployed his  private  price  mark  to  indicate  the  amount  of  the 
legacies,*  or  where  he  uses  words  which  have  a  peculiar  signifi- 
cation in  the  particular  place  where  he  dwells,  as  where  he 
Bpoaks  of  "his  farm"  or  "  homestead,"  parol  proof  of  the  fact 
of  such  u.sage,  with  explanatory  evideuco  of  what  the  abbrovia- 

Phillips  V.  Chamhorlainp.  4  Ves.  50,  <§r)40. 
57;  Aruln-ws  v.  Sfjhoppe,  «4  Wis.  170,  ft«^  r)!).!. 
175,  21  Atl.  li.  805.  <•(■'(. 1)1. •(  V.  Piwrhoy,  8  Rim.  24, 

»  g  Ws.  7  i)a,„i  V.  Fidlcr.  I'i  N.  Y.  40,  40. 

Mn^',  ^:^T.«0.  572.  585.  591,595,  597.        ■*  K.'ll    v.   Clianiior.  2:5  Itavv.   195; 

^Anli'.  ::::  510,  5JH.  MmsI.ts  v.  .Masli'i-s,  1  P.  W.  421. 


140S 


LAW    OF    WILLS. 


[§  913 


tions,  private  marks  or  peculiar  words  meant,  will  be  received.^ 
ISo,  also,  parol  evidence  is  received  for  the  purpose  of  showin<^ 
who  was  meant  by  the  testator  where  he  has  employed  a  pet 
name  in  his  will  to  describe  a  beneficiary.^  In  all  these  cases 
this  evidence  is  competent,  not  to  show  directly  the  person  or 
thing  that  the  testator  intended  in  this  particular  case,  but  to 
illustrate  his  habitual  modes  of  speech  and  thought,  leaving  the 
court  from  these  circumstances  to  ascertain  his  intention.' 


1  Scott  V.  Neeves.  77  Wis.  305,  311; 
Oades  v.  Marsh  (Midi.,  lSi)7),  09  N.  W. 
R.  251;  Schlottinan  v.  llott'man  (Miss., 
189G),  18  S.  R.  893:  Ryers  v.  Wheoler, 
23  Wend.  (N.  Y.)  152.  248;  Wangh  v. 
Waiigli,  28  N.  Y.  9:  Boggs  v.  Taylor, 
26  Oliio  St.  516;  Hart  v.  Marks,  4 
Brad.  (N.  Y.)  163. 

2  Clayton  t.  Lord  Nugent,  13  Mee. 
&  Welsby,  200,  207;  Price  v.  Page,  4 
Ves.  679." 

3  An  example  of  this  occurred  in 
Lee  T.  Pain.  4  Hare,  251.  The  testa- 
tor gave  legacies  to  '•  Mrs.  and  IMiss 
Bowden,  widow  and  daughter  of  the 
late  Mr.  Bowden."  It  appeai'ed  that 
two  persons  named  Mrs.  and  Miss 
Wash  bourne,  the  widow  and  daugh- 
ter of  a  Mr.  Washbourne.  were  en- 
titled to  these  legacies,  and  that  the 
testator  was  in  the  habit  of  calling 
these  ladies  Bowden  for  the  reason 
that  he  had  been  intimately  ac- 
quainted with  the  father  of  Mrs.  W., 
^vhose  name  was  Bowden.  The  fol- 
lowing remarks  of  Lord  Abinger. 
■uttered  in  determining  the  case  of 
Doe  d.  Hiscocks  v.  Hiscocks,  5  Mee. 
&  Wei.  363,  367,  have  been  often 
quoted  as  a  most  lucid  summary  and 
explanation  of  the  doctrine  of  the 
application  of  parol  evidence  to  the 
construction  of  wills:  "The  object 
in  all  cases  is  to  discover  the  inten- 
tion of  the  testator.  The  first  and 
most  obvious  mode  of  doing  this  is  to 
read  his  will  as  he  has  written  it,  and 
collect  his  intention  from  his  words. 
But  as  his  words  refer  to  facts  and 
circumstances  respecting  his  prop- 


erty and  his  famih'.  and  others  wliom 
he  names  or  describes  in  his  will,  it  is 
evident  that  the  meaning  and  ajjpli- 
cation  of  his  words  cannot  be  ascer- 
tained without  evidence  of  all  those 
facts  and  circumstances.  To  under- 
stand the  meaning  of  any  writer  we 
must  first  be  apprised  of  the  persons 
and  circumstances  that  are  the  ob- 
jects of  his  allusions  or  statements; 
and  if  these  are  not  fully  disclosed  in 
his  work,  we  must  look  for  illustra- 
tion to  the  history  of  the  times  in 
which  he  wrote,  and  to  the  works  of 
contemporaneous  authors.  All  the 
facts  and  circumstances,  therefore, 
respecting  persons  or  projjerty  to 
which  the  will  relates  are  undoubt- 
edly legitimate  and  often  necessary 
evidence,  to  enable  us  to  understand 
the  meaning  and  application  of  his 
words.  Again,  the  testator  may  have 
habitually  called  certain  persons  or 
things  by  peculiar  names,  by  which 
they  were  not  commonly  called.  If 
these  names  should  occur  in  liis  will 
they  could  only  be  explained  and 
construed  by  the  aid  of  evidence  to 
show  the  sense  in  which  he  used 
them,  in  like  manner  as  if  his  will 
was  written  in  cipher  or  in  a  foreign, 
language.  The  habits  of  the  testator 
in  these  particulars  must  be  received 
as  evidence  to  explain  the  meaning 
of  his  will.  But  there  is  another 
mode  of  obtaining  the  intention  of 
the  testator,  which  is  by  evidence  of 
his  declarations  of  the  instructions 
given  for  his  will,  and  other  circum- 
stances of  the  like  nature  which  are 


§  014.]   UXCEKTAINTY  OF  LANGUAGE  —  PAROL  EVIDENCE.    1409 


§  914.  The  nncertaiiity  of  terms  descriptive  of  real  prop- 
erty.—  Uncertainty  as  to  the  subject-matter  frequently  arises 
in  devises  of  real  property.  First.  Either  because  the  descrip- 
tion of  the  land  in  the  will  does  not  precisely  correspond  with 


not  adduced  for  explaining  the  words 
or  meaning  of  the  will,  but  either  to 
supply  some  deficiency  or  to  remove 
some  obscurity,  or  to  give  effect  to 
expressions  tliat  are  unmeaning  or 
ambiguous.  Now  there  is  but  one 
case  in  which  it  appears  to  us  that 
this  sort  of  evidence  of  intention  can 
properly  be  admitted,  and  that  is 
where  the  meaning  of  the  testator's 
words  is  neither  ambiguous  nor  ob- 
scure, and  where  the  devise  is,  on 
tlie  face  of  it,  perfect  and  intelligible, 
but.  from  some  of  the  circumstances 
admitted  in  pi-oof,  an  ambiguity 
arises  as  to  which  of  the  two  or  more 
things,  or  which  of  the  two  or  more 
persons  (each  answering  the  words 
of  the  will),  the  testator  intended  to 
express.  Thus,  if  a  testator  devise 
his  manor  of  S.  to  A.  B.,  and  has  two 
manors  of  North  S.  and  South  S.,  it 
being  clear  he  means  to  devise  one 
only,  whereas  both  are  equally  de- 
noted by  the  words  he  has  used,  in 
tliat  case  there  is  what  Lord  Bacon 
calls  '  an  equivocation,'  that  is, 
the  words  equally  apply  to  either 
manor;  and  evidence  of  previous  in- 
tention may  be  received  to  solve  tiiis 
latent  ambiguity,  for  the  intention 
sIkjws  wliat  he  meant  to  do,  and 
when  3'ou  know  that  you  immedi- 
ately perceive  that  lie  has  done  it, 
by  the  general  words  which  he  has 
used,  which  in  their  ordinary  sense 
may  properly  bear  that  construction. 
It  appears  to  us  that  in  all  other 
rases  parol  evidence  of  what  was  the 
ttjstator's  intention  ought  to  bo  ex- 
cluded \i\ion  this  plain  ground,  that 
his  will  out^lit  to  bo  made  in  writing, 
and  if  ids  int«'ntion  cannr)t  bu  made 
to  ai)|K;ar  by  the  writing  cxplaiiii'd 
by  cJrcumstancoH,  there  Ih  no  will." 
80 


*•  I.  A  testator  is  always  presumed 
to  use  the  words  in  which  he  ex- 
presses himself  according  to  their 
strict  and  primary  acceptation,  un- 
less, from  the  context  of  the  will,  it 
appears  that  he  used  them  in  a  dif- 
ferent sense,  in  which  case  the  sense 
in  which  he  thus  appears  to  have 
used  them  will  be  the  sense  in  which 
they  are  to  be  construed.  II.  Where 
there  is  nothing  in  the  context  of  the 
will  from  which  it  is  api^arent  that  a 
testator  has  used  the  words  in  whicli 
he  has  expressed  himself  in  any  other 
than  their  strict  and  primary  sense, 
and  where  the  words  so  interpreted 
are  sensible  with  reference  to  extrin- 
sic circumstances,  it  is  an  inflexible 
rule  of  construction  that  tiie  words 
of  the  will  shall  be  interpreted  in 
their  strict  and  primary  sense,  and 
in  no  other,  althoiigli  they  may  be 
capable  of  some  ])opular  or  secondary 
interpretation;  and  altliough  the 
most  conclusive  evidence  of  tiie  in- 
tention to  use  them  in  such  popular 
or  secondary  sense  may  be  tenilered. 
III.  Where  there  is  nothing  in  the 
context  of  a  will  from  which  it  is 
api)arent  that  a  testator  has  used  the 
words  in  which  he  has  expressed  ium- 
self  in  any  other  than  their  strict 
and  primary  sense,  but  ins  words  so 
interpreted  are  insensible  with  refer- 
ence to  extrinsic  circiunstances,  a 
court  of  law  may  loolc  into  the  ex- 
trinsic cir<;umstances  of  the  case  to 
see  whetlier  tlio  meaning  of  tlio 
words  bo  sensible  in  any  pojuiiar  or 
secondary  sense,  of  which,  witli  ref- 
erence to  tiiese  circ'umstan«"t*s,  tliey 
are  cajialili'.  IV.  Where  tiie  ciiar- 
acters  in  wliiili  a  will  is  written  are 
dinicult  to  111!  diMMphcrt'il.  or  the  lan- 
guage of  tlio  will  i.s  not  understood 


1410 


LAW    OF    WILLS. 


[§  914. 


the  description  of  any  land  wliich  is  owned  by  tlie  testator,  or 
f<econd,  because  the  description  of  the  hind  in  the  will  is  so 
vao'ue  and  general  that  the  court  cannot  tell  what  is  meant. 
An  example  of  the  first  class  would  occur  where  the  testator 
owns  a  lot  in  section  60,  and  devises  "  my  lot  in  section  59;  "^ 
or  where  he  devises  a  farm  in  A.  county,  and  the  only  farm  he 
owns  is  one  in  B.  county.  In  the  second  class  of  cases  the  de- 
scription is  so  vague  that  it  is  difficult,  if  not  impossible,  to 
know  how  much  land  the  testator  meant  to  include  under  the 
term  he  has  employed.  Thus,  where  he  devises  "  my  estate 
at  A.,"  "  the  premises  located  in  B.,"  or  his  "  farm,"  "  house," 
"plantation"  or  "homestead,"  it  is  impossible  to  tell,  without 
the  employment  of  parol  evidence,  what  outlying  tracts  and 
buildings  appurtenant  thereto  be  meant  to  include.  A  devise 
of  land  will  not  be  held  void  for  uncertainty  if  the  language 


by  the  court,  the  evidence  of  persons 
skilled  in  deciphering  writing,  or  who 
understand  the  language  in  which 
the  will  is  written,  is  admissible  to 
declare  what  the  characters  are,  or 
to  inform  the  court  of  the  proper 
meaning  of  the  words.  V.  For  the 
purpose  of  determining  the  object  of 
the  testator's  bounty,  or  the  subject 
of  disposition  or  the  quantity  of  in- 
terest intended  to  be  given  by  his 
wnll,  a  court  may  inquire  into  every 
material  fact  relating  to  the  person 
who  claims  to  be  interested  under 
the  will,  and  to  the  property  which 
is  claimed  as  the  subject  of  disposi- 
tion, and  to  the  circumstances  of  the 
testator  and  of  his  family  and  affairs, 
for  the  purpose  of  enabling  the  court 
to  identify  the  person  or  thing  in- 
tended by  the  testator,  or  to  deter- 
mine the  quantity  of  interest  he  has 
given  in  the  will.  The  same  (it  is 
conceived)  is  true  of  every  other  dis- 
puted point  respecting  which  it  can 
be  shown  that  a  knowledge  of  ex- 
trinsic facts  can,  in  any  way,  be  an- 
cillary to  the  right  interpretation  of 
a  testator's  words.  VI.  Where  the 
words  of  a  will,  aided  by  evidence  of 
the  material  facts  of  the  case,  are  in- 


sufficient to  determine  the  testator's 
meaning,  no  evidence  will  be  admis- 
sible to  prove  what  the  testator  in- 
tended, and  the  will  (except  in  certain 
special  cases  —  see  Proposition  VII) 
will  be  void  for  uncertainty.  VII. 
Notwithstanding  the  rule  of  law 
which  makes  a  will  void  for  uncer- 
tainty where  the  words,  aided  by 
evidence  of  the  material  facts  of  the 
case,  are  insufficient  to  determine  the 
testator's  meaning,  courts  of  law,  in 
certain  special  cases,  admit  evidence 
of  intention  to  make  certain  the  per- 
son or  thing  intended,  wliei'e  the  de- 
scription in  the  will  is  insufficient 
for  the  purpose.  These  cases  may  be 
thus  defined:  Where  the  object  of  a 
testator's  bounty,  or  the  subject  of 
disposition  (i.  e.,  the  person  or  tiling 
intended),  is  described  in  terms  which 
are  applicable  indifferently  to  more 
than  one  person  or  thing,  evidence  is 
admissible  to  prove  which  of  the  per- 
sons or  things  so  described  was  in- 
tended by  the  testator."  Wigramon 
Wills,  p.  55. 

1  Priest  V.  Lackey,  140  Ind.  399,  39 
N.  E.  R.  54;  Winkley  v.  Kainie,  32 
N.  H.  268. 


§  914.]       UNCERTAIXTY    OF    LANGUAGE TAKOL    EVIDENCE.  1411 


of  the  will,  though  describing  it  vaguely  or  incorrectly,  is  suffi- 
cient, ivith  parol  evidence,  to  identify  the  land  devised,  and  to 
show  the  intention  of  the  testator.  That  part  of  the  descrip- 
tion which  is  erroneous  will  be  rejected,  and  the  devise  will  be 
valid  if,  from  that  which  is  correct,  it  can  be  ascertained  Avhat 
piece  or  lot  was  meant  to  be  given.^ 


1  Bishop  V.  Morgan,  82  111.  351; 
Groves  v.  Gulp,  132  Ind.  186,  31  N.  E. 
R  569;  Hunt  v.  Braintree,  12  Met. 
(Mass.)  127;  Denfield  v.  Smith,  156 
Mass.  265;  Bridge  v.  Bridge,  146  Mass. 
293,  15  N.  E.  E.  809;  Otis  v.  Smith,  9 
Pick.  (Mass.)  293;  Brown  v.  Turner, 
113  Mo.  27,  20  S.  W.  R  661;  Seebrock 
V.  Fedawa,  33  Neb.  413,  50  N.  W.  R. 
270;  Bellows  v.  Copp,  20  N.  H.  492; 
Uppington  v.  Pooler,  19  N.  Y.  S.  48, 
428;  Bear  v.  Bear,  13  Pa.  St.  529; 
Hart  V.  Stoyer,  164  Pa.  St.  523,  30  Atl. 
R  497;  Best  v.  Hammond,  55  Pa.  St. 
509;  Jones  v.  Quattlebam,  31  S.  C. 
606,  9  S.  E.  R  982;  Blackmer's  Es- 
tate, 66  Vt.  46,  28  AtL  R  419;  In  re 
Ehle's  Will,  73  Wis.  445,  48  N.  W.  R 
627;  Finelite  v.  Smith,  124  N.  Y.  693. 
See  also  for  fuller  citations  the  notes 
to  ante,  §g  295-306.  In  a  case  wiiich 
arose  in  England,  where  the  testa- 
tor devised  the  "  house  in  Sej'mour 
Place,  which  I  have  given  a  memo- 
randum to  purchase  (and  which  is  to 
be  paid  for  out  of  timber  which  I 
have  ordered  to  be  cut),  to  the  Rev. 
John  Sanford,"  it  was  objected  to 
the  devise  that  the  will  did  not  spec- 
ify what  particular  timber  was  to  be 
cut,  and  tliat  the  devise  was  for  tliut 
reason  void  for  uncertainty.  But  tlio 
court  held  otiierwise,  admitting  j)arol 
evidence  to  sliow  tliat  the  testator 
had,  a  few  days  after  contracting 
for  the  purchase  of  the  house,  given 
orders  to  have  timber  to  the  value  of 


£10,000  cut  down  on  his  estate.  Th& 
direction  to  pay  for  the  house  out 
of  the  proceeds  of  timber  to  be  cut 
amounts,  in  effect,  to  a  devise  of  the 
proceeds  of  the  timber,  and  it  is  nec- 
essary to  ascertain  how  much  timber 
was  to  be  cut.  This  may  be  done  by 
parol,  and  the  moment  that  it  is  done 
and  the  court  is  put  in  possession  of 
this  information,  the  subject  of  the 
devise  is  ascertained  as  clearly  as 
though  tlie  number,  value  or  situa- 
tion of  tlie  trees  had  been  inserted 
in  the  will  itself.  The  remarks  of 
the  master  of  the  rolls  made  in  this 
case  are  well  worthy  of  attention. 
Sanford  v.  Raikes,  1  Merivale,  646. 
In  the  case  of  Ricketts  v.  Turquand, 
1  H.  L.  Cases,  472,  parol  evidence  was- 
admitted  to  show  wliat  tlie  testator 
had  intended  to  include  under  the 
term  "  my  estate,  called  Ashford 
Hall."  In  distinguishing  this  casft 
from  Doe  v.  Oxenden,  the  court,  by- 
Lord  Cottenham,  said :  "  If  a  testator 
describes  lands  in  a  particular  parish^ 
or  in  a  particular  locality,  you  can- 
not go  into  parol  evidence  to  siiow 
by  such  a  particular  descri[)tion  that 
lie  meant  land  out  of  it.  You  can- 
not do  that  without  contradicting 
tlie  terms  used.  Here  is  a  term  whii'li 
includes  more  or  loss  land,  acconlitig 
to  what  was  meant  by  the  term  used, 
and  all  we  are  in  search  of  is  the  par- 
ticular meaning  of  the  term  used." 


INDEX. 


Eeferencea  are  to  pages. 
ABATEMENT  — 

of  general  legacies,  535. 

specific  legacies  not  subject  to,  535. 

ot  money  legacy  charged  on  specific,  535. 

of  annuities.  53G,  1086. 

of  additional  legacies  and  between  life  tenant  and  remainderm.in,  536. 

subject  to  intention,  536. 

of  legacies  in  lieu  of  dower  or  other  claim,  53G,  537,  1050,  1051. 

when  legacy  saved  from,  437. 

relationsliip  of  legatee  to  testator  does  not  prevent,  537,  533. 

of  legacies  to  exonerate  mortgaged  land,  533. 

intention  to  give  preference  must  clearly  appear,  538. 

legacies  to  servants  subject  to,  538. 

ABEYANCE  — 

avoided  bv  operation  of  the  rule  in  Shelly's  case,  880. 

fee  is  in,  i'287,  1288. 

not  created  by  a  gift  to  charity,  1359. 

ABILITY  — 

to  carry  on  business,  is  test  of  capacity,  114,  116. 

ACCELERATION  — 

when  widow  rejects  a  life  estate  devised  in  lieu  of  dower,  1018. 
of  vested  remainders,  1334. 

does  not  apply  to  contingent  estates.  1334,  1335. 

when  income  is  given  for  a  particular  purpose  with  capital  to  legatee 
on  majority,  1335. 

ACCIDENT  — 

election  prevented  by,  may  be  relieved  against,  1016. 

contingent  wills  in  contemplation  of,  13. 

destruction  by,  does  not  constitute  revocation,  307,  308. 

ACCRUAL  — 

of  shares  to  survivors  of  a  class,  474. 
survivorship  not  ajjplied  to  siiares  by,  475. 
original  limitations  do  not  attach  to  shares  by,  475. 

ACCUMULATIONS  — 

period  witliin  wiiich  provision  for,  will  be  valid,  1378,  1379. 
period  of,  for  charities  may  be  indefinite,  1381,  1384. 

ACKNOWLKIJGMK.NT  - 

not  sytioiiymoiis  with  publication,  HOO. 

not  oi|uiv:ilc!it  to  signing  in  presencre  of  witnesses,  LMO,  HOI,  267,  260. 

proof  of,  where  a  witness  H^rgets.  21)1. 

(Kee  EXIX'UTIO.N;  Atticsting  Witnkssics.) 

ACQUIESCENCE  — 

of  devisee  may  create  trust  ex  nialcfacio,  220. 
ACTION  TO  CONSTRUE  WILL  — 

ef|iiiiy  may  critiTtain,  60'.). 

immediate  need  for,  60!). 

necessary  parties  to,  610,  CM. 


1414  INDEX. 

References  are  to  pages. 

ACTION  TO  CONSTRUE  WILL  (continued)  — 
probate  jurisdiction  of,  612. 
admissibility  of  original  will,  C13. 
questions  determinable  in,  613. 
effect  of  judgment,  618. 
statutes  regulating  costs,  614.  ^ 

ACTIVE  USES  — 

statute  does  not  apply  to,  1096. 

nature  of  the  directions  to  trustee  which  makes  a  use  active,  1097, 1099. 

for  benefit  of  a  married  woman,  1100-1103. 

no  merger  in  the  case  of,  1133. 

power  of  alienation  of,  1115. 

(see  Trusts.) 

ACTUAL  SERVICE  — 
defined,  243. 

ADEMPTION  — 

of  demonstrative  legacies,  556,  557. 

by  removal,  557,  561,  563. 

necessity  for  intention,  563,  563. 

of  legacies  of  animals  or  other  tangible  articles,  563. 

by  payment  and  transfer  of  debts,  563-566. 

of  land  specifically  devised,  506. 

by  partial  modification  of  interest.  566,  567. 

distinguished  from  satisfaction,  591,  593. 

ADJACENT  — 
defined,  408. 

ADMINISTRATION  EXPENSES  — 

when  charged  expressly  upon  the  land,  519,  530. 

ADMINISTRATOR  (see  Personal  Representative;  Executor). 

ADOPTION  OF  CHILD  — 
as  to  revocation,  359. 

as  consideration  for  contract  to  devise,  391,  393. 
purely  statutory,  717. 

child  becomes  heir  of  adopting  parent,  717. 
but  devise  to  heir  of  A.  or  children  of  A.  does  not  include  adopted  child, 

716. 
adopted  child  who  has  status  of  descendant  under  statute  may  take  as 

issue,  716. 

ADULTERY  — 

between  testator  and  beneficiary,  213. 

does  not  constitute  undue  influence,  313,  214. 

no  presumption  against  the  validity  of  a  will  from,  214 

ADVANCEMENT  — 

distinguished  from  clear  gift,  598. 

in  satisfaction  of  a  marriage  settlement,  600. 

not  in  satisfaction,  when  prior  to  the  will,  597,  598. 

directions  to  account  for,  598,  599. 

effect  of  direction  for  equality,  599. 

parol  evidence  to  show  intention,  599. 

entry  in  books  not  conclusive  evidence  of,  337. 

interest  charged  on,  577. 

AFFECTION  — 

influence  of,  203,  204. 

AFORESAID  — 
construed,  1390. 


INDEX.  1415 

References  are  to  pages. 

AFTER-ACQUIRED  LAND  — 

does  not  pass  by  general  devise,  974. 

cannot  be  devised  at  common  law,  75.  449,  488. 

modification  of  common-law  rule,  26,  75,  76. 

the  statutes  in  the  United  States,  77. 

the  question  of  the  testator's  intention,  77. 

language  from  which  the  intention  may  be  inferred,  77,  78. 

"  AFTER  PAYMENT  OF  DEBTS  "— 
when  this  term  charges  the  land,  522. 

AGE  — 

relevancy  of.  to  show  incapacity,  160-165. 
(see  Sexile  Dementia.) 

AGED  PERSON  — 

will  of,  drawn  by  principal  beneficiary,  197. 

AGENT  — 

trustee  cannot  purchase  for  himself  through,  1140. 

trustee  may  employ,  1134. 

liability  of  a  trustee  for  the  acts  of,  1134. 

AGE  OF  LEGATEE  — 
how  computed,  727. 
proof  of,  by  record,  727. 

testimony  and  entry  of  midwife  to  show,  727. 
proved  by  inspection,  728. 

AGRICULTURAL  IMPLEMENTS  — 
not  included  in  farm  stock,  425. 
(see  also  Farm.) 

AGRICULTURE  — 

bequests  for  the  advancement  of,  1206. 

ALIENATION  — 

power  of,  in  ancestor,  810. 

power  of,  in  early  times  by  feoffee,  1092. 

of  trust  estates,  1109. 

power  of,  conferred  upon  the  first  taker  by  the  rule  in  Shelly's  case, 

907. 
of  contingent  remainders  and  other  future  estates  at  common  law, 

1288,  1289,  1333,  1334. 
condition  against,  valid  when  partial,  not  general,  685-087. 
except  to  particular  persons  or  classes  may  bo  proiul)itcHi,  087,  688. 
proliibition  of,  during  limited  period  may  be  valid,  688,  689. 
of  personal  property,  690. 
by  insolvency  or  bankruptcy,  690-697. 
(see  Perpetuities;  Vesting;  Power  of  Sale.) 

ALIENS  — 

capacit}'  to  take  by  devise,  82. 

title  good  until  oflico  found,  83. 

citizen  cannot  take  by  descent  from,  83. 

right  of,  to  recover  land  held  adversely,  84. 

capacity  to  take  jx-rsonal  jjiopcrty,  84,  8.5. 

elfeft  of  naturali/.ation  fd,  upon  title  of  land  devised,  85,  86. 

presutnittion  tliat  ilevi.sec.-  is  not,  85. 

mode  of  proving  iiaturali/.ati<jn  of,  85. 

naturalization  of  the  children,  86. 

statutory  regulations  validating  devises  to,  80-88. 

ALSO  — 

defined,  432-434,  503. 


l-JrlG  INDEX. 

References  are  to  pages. 

ALTERATION"  — 
by  straiii^'ers,  362. 
by  legatee  is  void,  363. 
presumption  that,  was  by  stranger,  363. 
presumption  as  to  time  of,  363. 
evidence  to  show  date  of,  363,  364. 
declarations  to  show  time  of,  364. 
date  attached  to,  not  conclusive,  364. 
when  made  before  execution,  365. 
in  will  of  soldier,  365. 
in  pencil,  365. 
(see  Revocation;  Blanks.) 

ALTERNATIVE  CONTINGENCY  — 

limitations  depending  upon,  1370,  1373. 

AMBASSADOR  — 
domicile  of,  41. 

AMBIGUITIES  — 

latent  and  patent,  1398. 

parol  to  explain,  13!)!). 

declarations  of  testator  to  explain,  1399,  1400. 

(see  Parol  Evidence;  Declarations.) 

"AMONG"— 

distinguished  from  "between,"  434. 
creates  tenancy  in  common,  701. 

AMOUNT  — 

of  legacy;  effect  of  incorrect  description,  633,  633. 

AMUSEMENT  — 

bequests  for,  not  valid  as  charities,  1198. 

ANCESTOR  — 

"heirs,"  when  ancestor  lives,  means  heirs  apparent,  817,  818. 
heir,  takes  by  descent  property  devised  him  by,  812-814. 

"AND"— 

may  be  substituted  for  "or  "  in  case  of  death  without  issue  "or  "  under 

majority,  448,  504-506. 
"or"  substituted  for,  in  "death  unmarried  and  without  issue,"  033. 
may  be  changed  to  "or"  in  substitutional  gifts,  476. 

ANIMALS  — 

ademption  of  legacy  of,  563. 

on  farm,  pass  by  bequest  of  "  stock,"  425. 

ANNUITIES  — 

defined  and  distinguished  from  rent  charges,  1078. 
payable  primarily  out  of  personal  estate,  1078. 
included  under  legacies,  1079. 

may  be  a  lien  upon  land  or  upon  a  particular  fund,  1079. 
given  in  general  terms,  are  for  life  only,  lOSO. 
for  support,  1081. 
to  "heirs,"  are  perpetual,  1081. 

to  A.  and  the  "  heirs  of  his  body,"  not  within  the  statute  de  donis,  1082. 
words  of  inheritance  not  necessary  in  a  will  to  create  a  perpetual  an- 
nuity, 1082,  1083. 
may  be  commuted,  1083. 
disposition  of,  on  death  of  annuitants,  1083. 
apportionment  of,  1083,  1084. 
if  to  widow,  are  apportionable,  1084. 

vest  at  death  of  testator,  payable  one  year  therefrom.  1084. 
if  to  widow,  payment  may  begin  with  testator's  death,  1084,  1085. 
paid  yearly  unless  otherwise  ordered,  1085. 


IKDEX.  1417 

References  are  to  pages. 

ANNUITIES  (continued)  — 

payable  out  of  income  oi'  coi^jnis,  10S6-10S9. 
interest  on,  108!). 
abatement  of.  1089. 

while  annuitant  is  unmarried  or  is  living  apart  from  husband,  1089, 
1090. 

APPENDANT  POWERS  — 
defined.  1164. 
(see  Powers.) 

APPOINTMENT  — 
of  executor,  9. 

of  executor,  revocation  of,  348-350. 
(see  Powers  of  Appointment.) 

APPORTIONMENT  — 

of  income  between  life  tenant  and  remainderman,  581-586. 
of  annuities,  1083,  1084. 

APPURTENANCES  — 
defined,  404. 

ARREARS  — 

of  annuities,  payable  out  of  the  corpus,  1086,  1087. 

ART  — 

bequests  for  advancement  of,  1203,  1206. 

ASSETS  (see  Debts  of  Testator). 

ASSIGNS  — 

use  of.  does  not  prevent  lapse,  446. 

use  of.  does  not  prevent  the  application  of  the  rule  in  Shelly's  ease,  874,. 

888,912,913. 
of  trustee,  may  execute  discretionary  power,  1128. 

ASSUMPSIT  — 

may  be  brought  for  legacy,  574. 

AT  HOME  — 

money  ordered  to  be  converted,  997,  998. 

"ATTEST "— 

sufficient  attestation  clause,  275. 

ATTESTATION  CLAUSE  — 

added  to  holograpliic  will,  15. 

signature  of  testator  after,  2.')1. 

alterations  should  be  noted  in,  364. 

ineffectual  does  not  invalidate  holograph,  15,  17. 

ATTESTING  WITNESSES  — 
devises  to.  103,  263-265. 

evidence  of,  sustains  the  burden  of  proof,  107-109. 
of  nuncupative  wills,  236-238. 
refjuest  to,  by  testator,  261,  262. 
acknowledgment  of  signature  to,  259. 
cornpett-ncy  in  general,  263,  282,  283. 
must  be  credible.  263,  289-291. 
legal r-es  as.  264,  265. 

must  sign  after  tpstator,  and  in  his  presence,  266-270. 
need  not  sign  in  the  |)n'sence  of  each  other,  271,  272. 
higriatures  of,  by  mark,  272-274. 
C(Jini)etenf;y  of  minors  as,  274. 
must  be  pro'lueed  at  j)robatr',  274,  2ft8. 

if  liostile  tniy  be  ronlrHdict'd  by  attestation  clause,  276-278. 
publication  of  will  before  retjuired,  1^79-282. 


1418  INDEX. 

Eeferences  are  to  pages. 

ATTESTING  WITNESSES  (continued)  — 
inliabitant  of  town  as,  285. 

substitutionary  proof  in  case  of  death  or  absence.  288,  289. 
incompetency  arising  after  execution,  2G4,  289,  290. 
forgetfulness  of,  290.  291. 
may  be  impeached.  276-278.  291.  292. 
mode  of  impeachment  of.  292,  293. 
when  supernumerary,  287. 
executor  or  trustee  may  act  as,  282,  283. 
husband  or  wife  of  legatee  as,  283,  284. 
member  of  a  corporation  as,  285,  286. 
attorney  or  physician  of  testator  as,  286,  287. 
not  required  to  revocation  by  destruction,  305. 
necessary  to  revocation  by  obliteration  or  cancellation,  314. 
must  be  produced  in  suit  to  establish  lost  will,  373. 
(see  also  Execution;  Testamentary  Capacity.) 

ATTORNEY  — 

will  made  in  favor  of,  196-198,  210,  211. 
of  testator  as  attesting  witness,  286,  287. 

ATTORNEY-GENERAL  — 

his  powers  to  begm  action  to  ascertain  the  validity  of  a  charity,  1191, 
1237. 

AUTRE  V^E  (see  Estates  Pee  Autre). 

B. 

BAD  GRA^      AR  — 

does  not     .tiate  will,  1384,  1385. 

BANK  BOO.:  — 

gift  causa  mortis  of,  1070-1072. 

BANK  STOCK  — 

includes  corporation  shares,  423. 

BARN  — 

passes  with  devise  of  house,  messuage  or  premises,  403,  404. 
(see  Farm.) 

BASE  FEE  — 
defined,  1272. 

distinguished  from  conditional  fee,  1273. 
by  devise  over  upon  a  definite  failure  of  issue,  1374-1276. 

BEFORE  MENTIONED  — 
construed,  825,  826. 

BELIEF  — 

that  one  is  an  enemy  is  not  a  delusion,  126. 

-"BENEVOLENT  PURPOSES"  — 
gifts  for,  construed,  1217. 
broader  than  cliaritable  purposes,  1217. 
invalidity  of  gifts  for,  1217. 

BEQUEATH  — 

may  refer  to  gift  of  land,  431. 

BETWEEN  — 

defined  and  distinguished  from  "among,"  434,  738. 
creates  tenancy  in  common,  701. 

BIRTH  OF  CHILD  — 

revokes  will  at  Roman  law,  327,  328. 

did  not  alone  revoke  will  at  common  law,  335,  326,  330. 

and  marriage  revoke,  327,  328. 


INDEX.  1419 

References  are  to  pages. 

BIRTH  OF  CHILD  (continued)  — 

child  not  provided  foi*  in  will  take?  under  statute,  328-330. 
intentionally  omitted  from  the  will,  329,  380. 
when  not  a  revocation,  330,  331. 

parol  evidence  to  explain  omission  from  the  will,  329,  330. 
provision  for  children  born  after  execution  must  be  substantial,  331, 
332. 

BLANKS  — 

date  of  filling,  365,  366, 
may  be  disregarded,  384 
(see'  Alterations.) 

BLENDING  — 

proceeds  of  land  with  money,  not  conclusive  of  intention  to  convert 

out  and  out,  967,  968. 
of  real  and  personal  property  in  gift  to  heirs  as  a  class,  830-833. 

BLIND  TESTATOR  — 

need  not  see  witness  sign,  269,  270. 

testamentary  capacity  of,  166. 

will  should  be  read  to.  167,  202. 

may  prevent  completion  of  act  of  destruction,  306. 

BLOOD  RELATIONS  (see  Relations). 

BONDS  — 

pass  under  bequest  of  money,  420. 

may  pass  under  gift  of  bank  stock.  422. 

creditors,  their  remedy  against  land,  512. 

specific  legacy  of,  adeemed,  565.  J 

BOOKS  —  ' 

ma}'  pass  under  bequest  of  furniture,  424.  " 

BOOK  ENTRIES  — 

as  evidence  of  advancements,  337,  338. 
incorporated  in  will  by  reference,  381,  383. 
when  conclusive  on  legatee,  383. 

"BORN"— 

as  applied  to  children,  735.  736. 
includes  child  en  ventre,  747. 
(see  also  CHILDREN.) 

BREACH  OF  CONDITION  — 

right  of  entry  may  be  devised,  58,  61. 
not  excused  by  ignorance,  651. 

BliEACH  OF  TRUST  — 

by  associate  of  executor  or  trustee,  1138,  1139. 

liKOKER  — 

trustee  may  employ  to  buy  or  sell  real  property  or  securities,  1134, 
1135. 

BltOTIIEIiS  AND  SISTERS- 
when  class  ascertained.  798. 
include  those  of  half  blood,  798. 
when  cliildren  of,  may  take,  798,  799. 
legitimacy  of,  799. 
gifts  to  those  surviving,  1307. 

BURDEN  OF  BKOOF  — 

to  show  infr)rtiial  wrilitig  is  a  will,  55. 

to  show  capacity.  lOi;   I0'.»,  :.>:{9.  210. 

to  show  lucid  iiit<Tval,  110,  137. 

to  show  incapacity  from  iiito.xir.itioti,  154. 


1420  I.NUKX. 

References  are  to  pages. 

BURDEN  OF  PROOF  (continued)  — 

to  siiow  the  testator  knew  contents  of  will,  167,  168. 

to  show  undue  inliuence,  184. 

to  sliow  forpjery  of  will.  231. 

to  establish  lost  will,  371,  375,  876. 

to  show  an  adequate  search  for  lost  will,  371. 

to  establish  contract  to  devise,  3!)"2. 

to  establish  a  gift  causa  mortis,  1075,  1077. 

to  show  necessity  for  removal  of  trustee,  1131. 

to  show  validity  of  purchase  by  a  trustee,  1140. 

BURIAL  PLOT  — 

gift  for  purchase  of,  1223,  1228. 

BURNING  — 

no  revocation  when  incomplete,  306. 

of  will  of  blind  testator,  306. 

by  testator  not  having  capacity,  307. 

degree  of,  required  to  constitute  a  revocation,  309,  311. 

prevented  by  bystander,  311. 

(see  Revocation.) 

BUSINESS  ABILITY  — 

as  a  test  of  capacity,  114-116,  159,  162,  164. 


c. 

CALCULATION  — 

vaay  be  corrected  by  court,  682. 

CANCELLATION  — 

revocation  by,  304,  305,  313,  314. 

by  testator  not  having  capacity,  307. 

may  be  pro  tanto  by  crossing  name  of  devisee,  313,  314 

wiien  attestation  is  necessary,  314,  315. 

finality  of,  when  in  pencil,  316. 

of  the  signature  of  the  testator,  317. 

of  debts  by  direction  of  the  testator,  606. 

CAPACITY  (see  Testamentary  Capacity). 

CATTLE  — 

pass  under  a  bequest  of  chattels,  418. 

CEMETERY  — 

gifts  to  establish  are  valid  when  the  cemetery  is  public,  1221. 
but  invalid  if  for  the  testator  or  his  family  exclusively,  1223. 

CERTAINTY  — 

of  subject  of  precatory  trust,  1152. 

CHANGE  OF  DOMICILE  — 

when  effecting  a  revocation,  81. 

CHANGE  OF  INTENTION  — 

as  evidence  of  undue  influence,  189-191. 

CHARGE  — 

lapse  applied  to,  on  land,  441, 

when  it  sinks  into  the  land,  441. 

in  general  terms  not  sufficient,  515. 

of  debts  of  the  testator  on  the  land,  513,  516,  517. 

burden  of  proof  to  show,  518. 

of  funeral  and  administration  expenses  on  land,  519. 

of  debts  on  particular  land,  519,  520,  521. 

from  devise  of  land  after  payment  of  debts,  523. 


INDEX.  1421 

References  are  to  pages. 

CHARGE  (continued)  — 
meaning  of  "debts,"  523. 
power  of  sale  created  by,  524,  525. 
parol  evidence  to  sliow,  526. 
of  mortgage  debt  on  personal  estate,  528-535. 
of  legacy  on  land  specifically  given,  541. 
of  legacy  on  residue  implied  from  blending,  542,  544. 
from  direction  to  pay  legacy,  544,  545. 
from  devise  "after  payment."  547. 
of  legacies  for  support,  547,  548,  549,  550. 
lien  of  a,  551. 

extinguishment  or  merger  of,  551,  553. 
interest  on,  577. 

on  fee-simple,  no  resulting  trust,  627,  628. 
of  debts,  enlarges  indeterminate  devise  to  fee,  618,  935,  936,  937. 

CHARITIES  — 

power  of  municipal  corporation  to  distribute  fund  among,  100,  101. 

defined,  1186. 

early  history  of,  1186. 

early  jurisdiction  of  the  courts  of  common  law,  1187. 

jurisdiction  of  chancery  by  its  powers  in  cases  of  accident  or  mistake, 
1188. 

rules  of  trust  estates  applied  to,  1188. 

jurisdiction  of  equity  prior  to  the  statute  of  Elizabeth,  1189-1194. 

proceedings  in  equity  to  establish,  1191. 

must  be  for  a  public  purpose,  1195. 

private  schools,  libraries  or  museums  not  valid  as,  1195,  1196. 

gifts  for  friendly  society  are  not,  1197. 

bequests  for  a  public  sport  are  not,  1198. 

to  found  and  maintain  churches  and  for  spreading  religion  are,  1199- 
1201. 

for  masses,  not  valid  as,  1202. 

for  masses,  valid  in  America  as  bequests  for  religious  purposes,  1203, 
1204. 

to  establish  and  build  schools,  etc.,  1204-1206. 

for  scientific  purposes,  1206. 

for  the  benefit  of  the  poor,  1207-1211. 

for  the  benefit  of  orphans  and  widows,  1211-121.3. 

gifts  to  the  national  and  state  government  for,  1213,  1214. 

gifts  to  alter  law  or  effect  social  and  political  reforms  are,  1214-1217. 

"benevolence"  not  synonymous  with,  1217-1219. 

miscellaneous  cases  of,  1219-1221. 

for  cemeteries,  monuments,  etc.,  1221-1223. 

doctrine  of  cy  pres  applied  to,  1224-1231. 

uncertainty  of,  does  not  invalidate,  1232-1235. 

equity  may  appoint  trustees  for,  1230-1238. 

corporations  to  be  created  in  the  future,  1238-1241. 

donees  unincorporated  or  voluntary  associations,  1241-1243. 

misnomer  in  name  of  corjjoration.  1243-1245. 

power  to  ajjpoint  among,  1246-1252. 

gifts  to,  upon  condition,  1252. 

effect  of  consolidation  and  dissolution  of,  1254. 

gifts  to,  procured  by  frau<l  or  undue  influence,  1256,  1257. 

dfxitrine  of  superstitiouH  uses,  1258-1261. 

Htututes  of  mortmain,  1202,  1263. 

statutory  limitations  upon  power  to  devise  to,  1203-1205, 

the  New  Y<jrk  rule  of,  1266-126^, 

rule  of  pfrpctuilies  docs  not  a|>|)Iy  to,  1350-I361. 

devise  for  cor[ioration  to  be  created  may  olfenii  rule  against  perpe- 
tuities. 1361,  1362. 

deviw.'H  over  on  termination  of,  may  create  perpetuities,  1301. 

(see  PEtti'E'ruiTiifli) 


1422  IXDKX. 

References  are  to  pages. 

CHATTELS  — 

may  be  disposed  of  without  writing,  236,  241, 

emblements  are,  412. 

synonymous  with  goods,  417,  418. 

derived  from  catalla,  418. 

includes  choses  in  action,  418. 

rule  of  ejusdetn  generis,  418. 

rule  in  Sheily's  case  is  applicable  to,  90G. 

statute  of  uses  not  applied  to,  1096. 

CHATTELS  REAL  — 
defined,  66. 

governed  by  law  of  personal  property,  66. 
leases  and  terms  are,  67. 
may  be  bequeathed,  66. 
include  easements,  licenses  and  market  privileges,  67. 

CHECK  — 

gift  of,  causa  mortis,  1071-1073. 

CHILD  EN  VENTRE  SA  MERE  — 

operation  of  provision  for,  765,  766.     See  also  746,  749. 
(see  also  Classes.) 

CHILDREN  — 

of  testator,  means  those  at  his  death,  21. 

discrimination  among,  by  testator,  145-148. 

their  competency  as  attesting  witnesses.  275. 

birth  of,  after  execution  of  will  revokes  it,  326. 

effect  of  birth  of,  at  Roman  law,  327,  328. 

effect  of  omission  of,  under  statutes,  328. 

what  provision  for,  prevents  revocation,  330,  331. 

parol  evidence  to  explain  omission  of,  331,  332. 

adoption  of,  does  not  revoke  will  of  adopting  parent,  359. 

gift  to,  when  dead  at  the  date  of  the  will,  440. 

as  words  of  substitution.  476-478. 

legacies  to,  carry  interest  from  death  of  testator,  579. 

advancements  may  be  deducted  from  legacies  to,  599-601. 

legacy  to,  satisfied  by  a  portion,  592-598. 

gifts  to,  as  joint  tenants,  704,  705. 

as  a  word  of  purchase  means  immediate  descendants,  712,  714-716. 

may  include  grandchildren,  712,  713. 

does  not  include  step-children,  716. 

step-children  are,  716. 

adopted  children  may  take  as,  717,  718. 

of  different  marriages,  718,  719. 

alive  at  the  execution  of  the  will,  720. 

described  by  name  or  enumerated,  731. 

class  of,  in  immediate  gifts,  721,  722. 

•wlien  distribution  is  to  be  at  majority.  722-725. 

distribution  when  youngest  child  attains  majority,  728,  729. 

as  a  class  taking  in  remainder,  when  class  ascertained,  731-734,  1293, 

1294,  1297,  1305-1307. 
gifts  to  children  "to  be  born,"  720,  734-736. 
distribution  among,  when  per  capita,  736,  737. 
divide  equally  among,  favors  division  per  capita,  737. 
of  ])ersons  named,  division  per  stirpes,  738,  739. 
division  per  stirpes  when  taking  by  substitution,  739. 
distribution  per  stirpes  when  gift  is  to  a  person  and  the  children  of 

another,  740. 
number  of,  wrongly  stated,  742,  743. 
devise  over  in  case  of  "death  without,"  744-746,  869. 
"death  without"  may  mean  death  never  having  had,  745. 
"death  without  leaving  "  may  mean  death  without  having  had,  745. 


IXDEX. 


1425 


References  are  to  pages. 

CHILDREN  (continued)  — 
en  ventre  sa  mere,  743,  749. 
legitimacy  of.  presumed,  749.  750. 

competency  of  wife's  evidence  to  prove  legitimacy  of,  750,  751. 
when  creating  estate  tail,  8(j'^,  871,  87:2. 
family  may  mean,  779,  780. 
when  illegitimate  cliildren  take  as,  753-767. 
estate  tail  by  implication  on  death  "  without,"  744,  869. 
taking  in  place  of  deceased  parents,  796,  798. 
meant  b}'  heirs  of  tiie  bod}%  873. 
meant  by  gift  to  heirs.  817-819. 

take  devise  to  heirs  when  equal  division  is  directed,  ^33. 
remainder  to,  as  class  described  as  heirs,  833,  833. 
are  meant  in  case  of  "death  without  heirs,"  then  over.  834,  835. 
rule  in  Slielly's  case  does  not  apply  to  remainder  to,  870,  871,  886-888, 

890-893. 
when  issue  means.  930-933. 
precatory  trust  for  benefit  of,  1161,  1163. 
power  to  appoint  in  favor  of.  1163,  1176. 

power  to  appoint  among,  validly  exercised  by  gift  in  trust  for,  1177. 
remainder  to,  when  vested,  1397. 

remainder  to  take  effect  upon  death  of  life  tenant  without,  1393,  1394. 
remainders  to,  may  be  devested  by  their  death,  1311,  1314. 

"CHILDREN"  AS  A  WORD  OF  LIMITATION  — 
equivalent  to  "heirs  of  the  body."  769,  770,  863. 
fee  simple  or  fee  tail  created.  770,  771. 

rule  in  \Vild's  case  applies  when  no  children  living,  771,  773. 
wiien  children   living  tliev  take  joinlly  with  parent  under  rule  in 

Wild's  case.  773.  773,  774.' 
(see  Wild's  Case.) 

CHINA  — 

passes  under  a  bequest  of  furniture,  434. 

CHO.SES  IN  ACTION  — 
may  be  bequeathed,  65. 
legatee  takes  title  from  the  executor.  65. 
riglit  of  executor  and  legatee  to  sue,  66. 
may  not  pass  under  bequest  of  goods  and  chattels,  418. 
not  included  under  bequest  of  movables,  419. 
pass  under  bequest  of  money,  431. 
liave  no  locality.  437,  438. 

do  not  pass  by  gift  of  property  in  a  house,  437,  428. 
gift  of.  causa  mortis,  1071,  1073. 

CHURCH  — 

member  of,  as  an  attesting  witness,  385. 

bo(iuest  for  building,  furnishing  and  maintaining  is  valid  charitable 

gift.  1199. 
gift  to.  valid,  irrespective  of  form  of  worsliip,  1300. 
devise.^  to,  for  the  benelit  of  tiie  poor,  1307,  13U8. 

CIRCUMSTANCES  — 

evidi'iii-e  of.  to  sliow  fraud  and  undue  iulluence,  187-189. 
revocation  implied  from  change  in,  335. 
parol  evidence  to  explain,  1390. 

CLAIMS  — 

against  testator,  release  of  may  bo  required,  671. 

CLASS - 

how  gifts  to,  vest  in,  439. 

lapse  rxjt  Hj)plicab!e  to,  when  vesting  Ip  postponed,  439, 

gift  to  "exL-culors  above  named  "  in  a  gift  lo  a.  111. 


1-1-21  IXDEX. 

References  are  to  pages. 

CLASS  (continued)  — 

how  detenninod  when  legacy  is  immediate  and  when  postponed,  439, 

440.  712-737.  815.  817,  841,  842, 
remainder  to,  vested,  478. 

members  of,  deceased  at  date  of  execution  of  will,  480. 
substitutionary  gift  to  cliiidron  of  deceased  members,  480. 
composed  of  parents  and  cliildren,  480,  720. 

substitutionary  gift  in  case  of  future  death  of  member,  481,  482. 
take  as  joint  tenants,  704. 

gift  to  cliildren  as,  in  remainder,  opens  to  let  in  others,  713,  731-734. 
when  ascertained  in  case  of  cousins,  805. 
when  ascertained  in  case  of  heirs,  814-816. 
in  remainder  preceded  by  life  estate  in  a  class,  848,  844. 
composed  of  two  genei'ations,  720. 
children  alive  at  date  of  will,  720. 
wiien  legatees  named,  no  gift  to,  720,  721,  note, 
when  ascertained  if  devise  is  immediate,  721,  723. 
when  ascertained  if  distribution  at  majoritj',  722-725. 
when  ascertained  if  distribution  at  majority  of  youngest  child,  725-727. 
special  powers  to  divide  among,  1171,  1179. 
devise  to.  with  power  in  another  to  divide,  1173. 
illusory  appointments  among,  1178-1180. 
future  estates  to,  of  unborn  persons  as  a,  1349-1351. 
may  be  void  for  remoteness,  1851-1858. 
contingent  remainders  to  a,  1304-1307. 
when  ascertained  in  case  of  gifts  in  remainder,  1304-1307. 
future  gifts  to  surviving  members  of,  1305-1307. 
remainder  to,  though  vested,  may  be  devested  by  death  of  members, 

1311,  1314. 
direction  to  divide  land  among,  with  and  without  words  of  gift,  1307- 

1311. 
gifts  to,  not  void  though  fluctuating.  1389. 

a  perpetuity  may  be  avoided  by  separating  a  devise  to,  1183,  1365-1368. 
legacy  to,  to  be  taken  by  the  members  in  succession,  1393-1395. 
(see  Children,  Heirs,  Next  of  Kin,  etc.) 

CLAUSE  OF  ATTESTATION  — 
signature  of  testator  after,  254. 
signature  of  witness  before  or  after,  266. 
may  be  omitted,  275. 
need  not  be  formal,  275. 
raises  presumption  of  regularity  of  execution  from,  276,  277. 

CLAUSE  OF  REVOCATION  — 

in  printed  will  bj'  mistake,  353,  354. 

may  not  have  literal  application,  354 

in  general  terms,  does  not  revoke  a  power,  354. 

express,  revokes  appointment  of  the  executor,  349. 

strictly  construed,  338. 

affecting  specific  legacies,  but  not  a  residuary  devise,  338. 

presumption  against  creation  of  partial  intestacy,  338. 

must  sliow  present  intention  to  revoke,  339,  310. 

may  operate  though  disposing  part  is  void,  340,  341,  355. 

(see  also  Revocation.) 

CLERGY  — 

will  in  favor  of,  4. 

CLOSE  — 

defined,  404. 

CLOSET  — 

bequest  of  contents  of,  426. 

CLOVER  — 

is  not  emblements,  413. 


INDEX.  1425 

References  ai-e  to  pages. 

CODICIL  — 
defined,  11. 

immaterial  that  it  is  not  attached  to  will,  296. 
may  cure  defective  execution  of  will,  287,  295,  396. 
will  need  not  be  read  at  execution  of,  297. 
must  be  executed  as  a  will,  297. 
effect  of,  on  after-acquired  land,  298. 
will  not  revive  an  adeemed  legacy,  298. 
brings  language  of  will  to  date,  299,  384. 
effect  of,  on  holographic  will,  300. 
revocation  by,  under  statute  of  frauds.  337,  338. 
construed  to  avoid  partial  intestacy,  338. 
restricted  effect  of  revocation  clause  in,  339. 
must  show  present  intention  to  revoke,  339,  340. 
effect  of,  as  revoking  will  partly  void,  340. 
revoking  will  by  inconsistent  disposition,  341,  343. 
repugnancy  in,  must  be  reconciled  with  will.  341. 
when  vague,  does  not  revoke  clear  gift  in  will,  343. 
does  not  revoke  appointment  of  executor  by  an  inconsistent  disposi- 
tion. 349,  350. 
presumption  of  revocation  of,  from  revocation  of  will,  353. 
when  unintelligible  without  will,  353,  353. 
additional  and  substitutional  legacies  in,  5G9-573. 

COHABITATION  — 

directions  discouraging,  of  husband  and  wife  are  void,  681,  683. 

COLLATERAL  POWERS  — 
defined,  1164. 

COLLEGE  — 

residence  at.  as  affecting  domicile,  43. 

validity  of  gift  to  municipal  corporations  for  a,  97. 

CO>IMITTEE  — 

is  appointed  for  an  incompetent  legatee,  104,  580. 

COMMON  DISASTER  — 
death  by,  26-28. 

COMMUNITIES  — 
gifts  by  will  to,  89. 

COMMUNITY  PROPERTY  — 

distinguished  from  separate  property,  73,  1054. 
right  of  husband  to  control  during  his  life,  74,  1054. 
neither  party  may  dispose  of  more  than  half  of,  1055. 
presumption  against  an  election  in,  1055. 
actions  which  are  an  election  to  take,  1056. 

COMMUTATION  — 
of  annuities,  1083. 

<OMPARISON  — 

proving  handwriting  by,  234. 

COMPENSATION  — 

df)ctrine  of  election  is  based  upon,  1004. 

how  made  in  case  of  an  election,  1005,  1006. 

in  case  of  widow  rejecting  ti-Ktamcntary  provision,  1006. 

party  electing  need  not  surrender  whole  henedt  of,  1007,  1008. 

oetielit  relinfjuished  cannot  be  treated  as  lapsed,  1(109,  n. 

to  wid(jw  whose  devise  in  lieu  of  dower  is  taken  to  pay  debts,  1050. 

COMPETENCY  — 

of  legatees  as  attesting  witnesses,  263,  265,  201. 
90 


1420  INDEX. 

References  are  to  pages. 

COMPROMISE  — 

favoietl  in  equity,  394. 

apiroement  of,  made  by  heirs  or  next  of  liin,  394. 

of  family  disputes,  395. 

CONDITION  — 
defined,  637. 

precedent  and  subsequent  distinccuished,  G37,  GH. 
distinguished  from  limitations,  6:,iS,  039,  641,  003. 
distinguished  from  trust  estates.  640. 
proper  language  to  create.  040,  641. 
examples  of  precedent,  642,  643. 
examples  of  subsequent.  614. 
strict  performance  required,  637,  644 
time  for  performance,  644,  045. 
impossibility  of  performance,  646.  647. 
illegal,  attached  to  legacies,  648,  649. 
waiver  of  performance,  049. 
repugnant  to  estate  devised.  650,  651. 
legatee's  ignorance  of,  650.  651. 
in  restraint  of  marriage.  651-061. 
the  gift  over,  663,  663. 

distinguished  from  limitations  during  widowhood,  638,  663. 
against  remarriage  of  testator's  widow,  663-605,  667,  1230. 
involving  the  attainment  of  full  age  by  legatee,  007,  008,  1315-1323. 
that  legatee  shall  return  from  abroad.  669,  070. 
that  legatee  shall  release  claims,  070,  071. 
that  legatee  shall  not  dispute  the  will,  673-675. 
regulating  residence,  675,  676. 
requiring  change  of  name  of  legatee,  677,  679,  807. 
requiring  legatee  to  carry  on  a  business,  679,  680. 
recpiiring  legatee  to  pursue  course  of  study,  680. 
teiiiliiig  to  separate  husband  and  wife,  081. 
providing  support  for  wife  while  separated  from  husband,  682. 
requiring  the  possession  of  good  habits,  683,  684. 
against  alienating  land,  685-689. 
against  alienating  personal  property,  690. 
involving  forfeiture  on  insolvency,  690-697. 
when  subsequent  construed  in  favor  of  vesting,  645. 
who  may  take  advantage  of  breach  of,  638. 
attach  to  charities,  1253-1254,  1360. 
gift  to  an  executor  may  be  conditional  on  his  acceptance,  858,  859. 

CONDITIONAL  FEE  — 
defined,  1271-1374. 

turned  into  fee  tail  by  statute  de  donis,  860. 
by  devises  to  charity,  1360.  _^ 

CONDITIONAL  LIMITATION  — 

defined  and  distinguished  from  estate  on  condition  and  remainder, 

639,  641,  663. 
on  forfeiture  by  marriage  without  consent,  657. 
or  remarriage  of  a  life  tenant,  003,  007, 1220,  1293-1395. 

CONDITIONAL  REVOCATION  — 
defined,  345. 

based  on  belief  that  legatee  is  dead,  346. 
based  upon  facts  within  knowledge  of  the  testator,  348. 
rendered  ineffective  by  failure  to  execute  new  will,  345,  346. 
by  alterations  after  execution  of  a  will,  345,  346. 

CONFIDENCE  — 

trust  created  by  words  of,  1153,  1154,  1158. 

CONFIDENTIAL  RELATIONS  — 

as  bearing  upon  undue  influence,  187,  196-198,  206-212. 


INDEX.  1427 

References  are  to  pages. 

CONFLICT  OF  LAWS  — 

devises  regulated  by  lex  loci  rei  sitce.  29. 
legacies  regulated  by  law  of  domicile,  30. 
cases  of  abandonment  of  domicile,  31. 
bequests  in  lieu  of  dower,  32. 
wills  executing  powers,  32. 
words  descriptive  of  legatees,  83. 
perpetuities,  33,  34. 
devises  in  trust  for  conversion,  34. 
contracts  to  make  wills,  34,  35. 
equitable  conversion,  34,  990. 

CONJECTURE  — 

to  construe  will,  1385. 

CONSANGUINITY  — 
relations  by,  791-799. 

CONSENT  — 

to  exercise  of  power  of  sale  may  create  a  perpetuity,  1358. 

of  husband  to  will  of  wife,  172-174. 

no  conversion  when  sale  is  to  be  made  with,  969-971. 

CONSENT  TO  MARRIAGE  (see  Marriage,  Conditions  Restraining). 

CONSIDERATION  — 

of  agreement  to  compromise,  394. 
of  contract  to  devise,  387. 

CONSOLIDATION  — 

of  charities,  1254,  1255. 

CONSTRUCTION  OF  WILL  — 
suit  to  procure,  608-614. 

CONSUL  — 

/     domicile  of,  41. 

CONSUMABLE  ARTICLES  — 
devise  of,  948,  949. 

CONTENTS  — 

of  lx)x.  trunk  or  desk,  under,  426-428. 
of  house,  under,  427. 

CONTENTS  OF  WILL  — 

knowledge  of,  by  testator  must  appear.  200. 

jtrrsuiiiption  of  testator's  kiiowloilge  of,  201. 

should  be  explaincil  to  blind  or  illiterate  testator,  201,  203. 

in  case  of  will  in  foreign  language,  203. 

cannot  be  proved  by  parol,  377. 

CONTEST  OF  PROBATE  — 
validity  of  con<litions,  672. 
necessity  for  a  valid  gift  over,  673. 
language  constituting  condition  against,  673. 
what  actions  are  a  breach  of  a  c;ondition,  673,  674. 
conditions  forbidding,  not  against  public  policy,  674,  675. 

CONTIGUOUS  — 
d.-fiiK-d,  408. 

CONTI  N( i ENT  ESTATES  — 
may  1m.-  deviseil.  56-61. 

contin(;ent  remalnder  — 

detiiM-l.  i:ui. 
to<hildn-ii.  72H-730. 
to  hoir.s,  814-«17. 


142S  INDEX, 

References  are  to  pages. 

CONTINCJENT  REMAINDER  (continued)  — 

on  detorniination  of  an  estate  in  fee  tail.  8G7-8G9. 

etrect  of  the  rule  in  Slielly's  case  upon,  907,  908. 

by  devise  to  A.  and  his  issue,  911. 

rules  regulating,  applied  to  uses,  1108. 

invalidity  of,  when  limited  to  classes  of  unborn  persons,  1351. 

(see  Vesting;  Remainders;  Class.) 

CONTINGENT  USES  — 

executed  by  the  statute  of  uses,  1105. 
necessity  for  a  seizin  to  support,  1106. 

CONTINGENT  WILLS  — 
defined,  12. 
character  of  peril,  11. 
intention  as  to  validity  to,  11,  13. 
preservation  of,  after  return,  14. 
language  employed  in,  14. 

CONTINUANCE  — 
of  domicile,  40. 

CONTRACT  — 

of  testator  may  be  enforced  by  the  executor,  65. 

distinguished  from  a  will,  49. 

ability  to  make,  as  a  test  of  capacity,  114-116. 

CONTRACT  OF  SALE  — 
conversion  by.  972-976. 
(see  also  Conversion;  Option  to  Purchase  Land.) 

CONTRACT  TO  EXECUTE  WILL  — 
validity  of.  886. 

specific  performance  of,  387,  388. 
conveyance  in  fraud  of.  set  aside,  387,  388. 
suit  for  bi'each  of.  against  executor,  388. 
amount  recoverable  under,  388. 
if  relating  to  land,  must  be  in  writing,  389. 
when  indivisible.  389,  390. 
effect  of  part  performance,  389,  390. 
irrevocability  of  wills  under,  390. 
what  constitutes  performance  of.  391. 
adoption  as  a  consideration  for.  391,  393. 
burden  of  proof  to  establish.  393. 
in  favor  of  institution,  393,  394. 
conflict  of  laws,  34. 

CONVENT  — 

bequest  to,  is  valid,  1200. 

CONVERSION  — 

definition  and  origin,  955,  956. 

the  necessity  for  an  intention  to  effect  a,  957. 

discretionary  power  of  sale  does  not  always  cause,  957-960. 

by  sale  tor  payment  of  debts,  960. 

without  express  trust  for  sale,  9G1,  963. 

mandatory  power  of  sale  not  always  necessary  for,  963,  964 

discretion  as  to  time  and  place  of  sale,  963,  964. 

takes  place  as  of  testator's  death,  965. 

time  postponed  when  conversion  is  at  option  of  trustee,  966. 

after  death  of  life  tenant.  967. 

reconversion  when  there  is  a  blending  of  real  and  personal  property, 

967,  968. 
■when  depending  upon  a  contingency,  a  request  or  a  consent,  969-971. 
by  direction  to  sell  at  fixed  price,  971. 
option  to  purchase  given  devisee,  972,  973,  976,  977. 


INDEX.  1429 

References  are  to  pages. 

CONVERSION  (continued)  — 

of  land  contracted  to  be  sold,  972.  973. 

of  land  contracted  to  be  bought,  974-976. 

of  land  devised  subject  to  an  option  to  purchase,  976.  977. 

of  land  taken  for  public  use,  978-980. 

of  land  belonging  to  an  infant  or  an  incompetent  person,  980-983. 

the  effect  of,  983. 

personal  property  converted  passes  as  land,  984. 

dower  and  curtesy  in  property  converted,  9S5,  986. 

failure  of  the  purpose  of,  reconversion  ensues,  986-989. 

resulting  trust  wiien  purpose  of.  fails.  989,  990. 

conflict  of  laws  in  relation  to,  34,  990. 

double  conversion,  990.  991. 

election  to  take  property  unconverted,  991. 

who  may  elect  to  take  property  without,  993. 

all  persons  must  agree  in  electing.  993,  994. 

when  an  election  must  be  made,  994. 

what  constitutes  an  election  to  take  property  without,  994-996. 

election  by  remaindermen,  996. 

election  by  tenant  in  tail,  997. 

no  constructive  conversion  when  money  is  "at  home,"  997,  998. 

not  "  out  and  out "  from  direction  to  sell  land,  532. 

of  wasting  securities,  581-586. 

none  takes  place  in  land  devised  to  widow  when  she  takes  against  the 

will,  1048. 
direction  for,  may  show  a  general  devise  does  not  pass  a  trust  estate, 
1127. 

CON^VEYANCE  — 

right  to  have,  set  aside  does  not  revoke,  849. 
trust  to  execute  is  active,  1097,  1098. 

CONVICTS  — 

testamentary  incapacity  of,  174,  175. 
statute  conferring  capacity,  175. 

COPARCENER  — 

may  devise  his  estate,  64. 

CORN  — 

when  emblements,  411. 

CORPORATIONS  — 

capacity  of,  to  take  land  under  a  will,  00. 

New  York  rule  as  to  devises  to,  1266-1268. 

not  included  as  an  "  heir  before  mentioned,"  826. 

trustee  may  hold  title  for,  until  incorporation.  1237. 

devise  to,  not  invalidated  by  misnomer,  1243-1245. 

at  common  law,  gift  to  was  invalid  when  to  be  organized  in  future, 

1238. 
ef|uity  recognizes  gift  to  future,  1239.  1240. 

Sf-rpotuity  involved  by  gift  to  non-existent,  1240. 
'ew  York  rule  reganling  gifts  to,  1240. 
the  statutes  of  mortmain  prevented  ileviso  to,  1261-1203. 
modern  limitations  upon  the  (luantity  of  land  which  may  be  devised, 

1263-1265. 
devirtes  to  those  wliicii  are  to  be  incorporated  in  the  future,  1301,  1362. 

corrf:spondence  — 

as  evidence  of  mental  condition,  149. 

COSTS  — 

in  action  to  construe  will,  614. 

COTKNANTS  — 

gifts  to,  when  they  do  and  do  not  lapse,  437,  438. 


14:30  INDEX. 

Eeferences  are  to  pages. 

COURT-HOUSE  — 

validity  of  bequest  to  purchase,  98. 

COURTS  - 

jurisdiction  to  construe  wills,  608. 

COUSINS  — 

"relatives"  under  statute  preventing  lapse,  453. 
means  first  cousins,  80.1 
•oiien  class  ascertained,  803. 
may  include  second  cousins,  805. 

COVERTURE  — 

capacity  of  woman  during,  to  make  will,  173-174. 

CREDITORS  — 

legacy  to,  lapses,  443. 
legacy  to,  does  not  abate,  537. 
satisfaction  of  legacy  to,  001. 
when  legacy  is  greater  than  debt,  602. 
debt  incurred  after  execution  of  the  will,  603. 
legacy  to,  when  creditor  is  wife  or  child  of  tlie  testator,  604. 
legacy  to,  may  require  legatee  to  release  claim,  670. 
election  by,  between  will  and  debt,  671. 
power  of  testator  to  bind,  by  false  statements,  671. 
need  not  elect  between  land  devised  to  pay  debts  and  personal  prop- 
erty, 1038. 

CREDITS  — 
defined,  433. 

CROPS  — 

growing,  disposition  of,  411. 

CROSS-REMAINDER  — 

by  implication  on  definite  failure  of  issue  of  tenants  in  common  in  fee, 
624,  1281-1284. 

CUMULATIVE  AND  SUBSTITUTIONAL  LEGACIES  — 

defined,  568. 

presumption  where  two  legacies  of  same  thing,  568,  569. 
presumption  fi-om  gifts  by  different  instruments,  569. 
presumption  from  gifts  by  the  same  instrument,  570. 
repetition  of  legacies  by  same  instrument  prompted  by  diverse  mo- 
tives, 570. 
parol  evidence  to  show  character  of  legacies,  571. 
intention  of  testator  as  to  repeated  legacies,  573. 
liable  to  incidents  of  the  original,  573,  574. 

CURIOSITIES  — 

pass  under  bequest  of  furniture,  424. 

CURRENCY  — 

in  which  legacy  is  payable,  579,  580. 

CURTESY  — 

condition  that  husband  shall  not  have,  650.  n. 

in  money  to  be  invested  in  land,  985. 

defined,  1059. 

statutory  regulation  of,  1000. 

may  be  destroyed  without  husband's  consent,  1060. 

may  be  destroyed  by  separate  use  trust,  1001. 

CUTTING  — 

is  equivalent  to  tearing,  312, 
name  of  testator  removed  by,  312. 
names  of  witnesses  removed  by,  313. 


INDEX.  1431 

References  are  to  pages. 

CY  PRES,  DOCTRINE  OF  — 
defined.  V22i. 

derived  from  exercise  of  the  royal  prerogative,  1234,  1325. 
avbitrarj-  exercise  of,  by  English  courts,  1225. 
cases  of  the  devise  to  Baxter  and  for  a  Jewish  synagogue  which  were 

invalid,  1225.  1226. 
applied  in  England  to  illegal  gifts,  1226. 
applied  to  indefinite  gifts.  1226. 
may  nullify  the  intention  of  the  testator,  1227. 
not  consistent  with  the  principles  of  government  in  the  United  States, 

1227,  1228. 
except  in  Massachusetts  and  Missouri,  1231, 
applied  in  case  of  dissolution  of  corporation,  1254 

D. 

DATE  — 

not  necess?iry  to  will,  247, 

to  holographic  wills,  15,  247. 

of  will,  may  be  supplied  or  contradicted  by  parol,  247,  351,  365,  570. 

referred  to  in  will,  381, 

of  alterations,  presumptions  as  to,  364. 

parol  evidence  to  show,  365, 

DAUGHTERS  — 

legitimate  child  presumed,  799. 

rule  of  lapse  in  case  of  class  gift  to,  799. 

gift  to,  described  as  "married,"  800. 

to  husbands  of,  800, 

of  several  marriages,  800, 

mistake  in  enumerating,  742,  801. 

DAUGHTER-IN-LAW  — 

cannot  claim  under  devise  to  children,  716,  n. 

DEAF  MUTES  — 

testamentary  capacity  of,  168-170, 

DEATH  — 

contingent  wills  made  in  immediate  peril  of,  13. 

will  speaks  from,  21,  22,  720,  1355. 

by  common  disaster,  survivorship  in  case  of.  20-28. 

nuncupative  will  need  not  have  been  made  in  immediate  expectation 
of.  239. 

of  attesting  witness,  276. 

after  the  testator,  does  not  produce  lapse,  448.  449. 

estates  by  implication  by  devise  after,  619,  620,  621. 

without  children,  devise  over  on,  may  reduce  fee  simple  to  fee  con- 
ditional, 622. 

without  children,  does  not  by  implication  enlarge  life  estate  to  fee 
simple,  623. 

cross-remainders  after  death  of  several  tenants,  624, 1281-1284. 

"unmarried  and  without  issue,"  633,  634. 

"  without  children,"  defined,  744-746, 

"without  heirs,"  means  death  without  children,  824,  835. 

"without  leaving  son,"  865. 

"without  heirs,"  means  an  indefinite  failure  of  issue,  868. 

without  leaving  issue  alive,  effect  of,  869. 

apprehension  <if,  for  gift  causa  iikiiUs,  1067. 

of  trustee,  new  one  may  bo  appointed,  1126,  1129. 

DEATH  DURING  MINORITY  — 

effect  of  devise  over  upon,  in  enlarging  estate  into  a  fee  simple,  947, 
948. 


1432  INDEX. 

References  are  to  pages. 

DEATH  OF  BENEFICIARY  — 

in  life-time  of  testator,  457,  458. 

provided  for  to  prevent  lapse,  458. 

before  receiving  legacy,  459,  460. 

before  legacy  is  "  payable,"  461,  462. 

coupled  with  a  contingency,  462,  466. 

without  issue  in  the  life-time  of  tlie  testator,  466. 

witiiout  issue  after  the  death  of  the  testator,  467,  468. 

(see  also  Survivorship.) 

DEATH  WITHOUT  HEIRS  — 

equivalent  to  death  without  issue,  868. 

DEATH  WITHOUT  ISSUE  — 
under  majority,  503-508. 
;*and"  substituted  for  "or,"  505,  507,  508. 
in  connection  with  devise  to  eldest  son,  865,  866. 
estate  tail  by  implication  on,  625,  867-869. 
effect  of  limitation  over  on,  on  rule  in  Shelly's  case,  887,  n. 
devise  over  in  case  of,  when  a  remainder  is  to  issue,  914. 
creates  an  executory  devise  when  coupled  with  a  perpetual  annuity^ 

1082. 
(see  Children.) 

DEBTOR  — 

legacy  by,  to  creditor,  443. 
legacy  to,  when  lapses,  443. 

DEBTS  — 

to  be  collected  by  the  executor,  65,  66. 

pass  under  bequest  of  money,  420-422. 

from  legatee  regarded  as  advancements,  577. 

ademption  of  specific  legacies  of,  by  payment,  563,  566. 

change  in,  may  not  adeem.  564. 

legacy  to  pay  may  be  satisfied,  601. 

legacies  to  debtors  are  not  in  satisfaction  of,  005,  606. 

duty  of  trustee  to  collect,  1134,  1138. 

power  of  trustee  to  compromise,  1134. 

trustee  may  employ  attorney  to  collect,  1135. 

DEBTS  OF  LEGATEE  — 

protection  against,  692-695. 

DEBTS  OF  TESTATOR  — 

land  not  responsible  for,  if  not  under  seal,  512. 

charged  on  his  land,  513,  514, 

marshaling  of  assets  to  pay,  514. 

met  in  equity,  514. 

primary  liability  of  personal  property  for,  515,  516. 

what  will  cast  them  primarily  on  the  land,  516,  517. 

burden  of  proof  to  show  exoneration  of  personal  property,  519. 

for  administration  and  funeral  expenses,  519. 

exoneration  from,  of  personal  property  bequeathed  specifically,  520i. 

521. 
devise  of  land  "after  payment  of,"  522,  523. 
meaning  of,  as  charged  upon  real  estate.  523. 
power  of  selling  land  created  b}^  a  direction  to  pay,  524,  525. 
an  insufficiency  of  personal  property  at  the  date  of  the  will,  526. 
exoneration  of  mortgaged  land  from  mortgage,  528-533. 
effect  of  a  devastavit  by  the  executor,  534,  535. 
abatement  of  general  legacies  to  pay,  535,  536. 
abatement  of  annuities  to  pay,  536,  537 
direction  to  pay,  a  personal  charge,  618. 
direction  to  pay,  creates  a  resulting  trust,  627,  628. 
charge  of,  may  enlarge  indeterminate  devise  to  a  fee,  936,  937. 


IKDEX.  14:3S 

References  are  to  pages. 

DEBTS  OF  TESTATOR  (continued)  — 

power  to  sell  land  for  payment  of,  960,  9G1. 

direction  for  payment  of,  may  show  trust  estate  does  not  pass  by  gen- 
eral devise,  1127. 
duty  of  trustee  to  pay,  when  a  charge  on  the  estate,  1136. 
power  of  executor  to  mortgage  for  payment  of,  1119., 
power  to  sell  for  payment  of,  1120. 
purchaser  must  see  to  payment  of,  1148-1151. 

DECLARATIONS  — 

to  show  domicile,  43,  44. 

of  testator  to  show' undue  influence,  182. 

of  beneficiary  to  prove  secret  trust,  221,  223. 

of  testator  to  show  capacity,  139,  148,  149. 

prior  or  subsequent  to  execution,  149,  227,  228. 

of  the  testator  to  explain  conduct,  149. 

to  show  sanity  or  tlie  reverse,  139,  149. 

of  testator,  are  not  direct  evidence  of  fraud  or  undue  influence,  225^ 

to  show  condition  of  testator's  mind,  226. 

received  though  subsequent  to  execution,  149.  226,  227. 

of  testator  to  explain  inequality  of  distribution,  226,  227. 

of  legatee  or  executor  to  show  undue  influence,  228-230. 

of  attesting  witness  not  direct  proof  of  capacity,  293. 

of  testator  to  show  intention  of  act  of  destruction,  307. 

of  testator  to  strengtlien  or  rebut  the  presumption  of  revocation  from, 

disappearance  of  will,  307,  317,  318,  320,  321. 
must  be  testamentary  in  form  to  constitute  revocation,  319. 
not  admissible  to  supply  intention  in  an  act  which  is  not  a  revocation,^ 

320. 
admissible  when  of  the  res  gestae,  320. 
competent  to  strengthen  or  rebut  presumption  of  revocation,  317,  318, 

320,  321. 
to  show  date  of  alterations,  364. 

to  show  tliat  omission  of  child  was  intentional,  332,  333. 
to  prove  contents  and  execution  of  lost  will,  372-374,  377. 
to  establish  contract  to  devise,  392. 
to  show  legacy  is  substitutional,  572. 
not  admissible  to  affix  a  new  meaning  to  words,  715. 
of  donor  admissible  to  establish  gift,  1076,  1077. 

DE  BONIS  — 

statute  of,  860,  861. 

DEED  — 

distinguished  from  will,  45-55. 
right  to  have,  set  aside  may  be  devised,  60. 
presumption  that  writing  is,  from  its  beingsealed,  53,  248. 
execution  of  power  by,  may  revoke  will,  355. 
no  revocation  when  deed  is  rescindoil,  355. 
may  be  incorporated  in  will  l>y  reference,  379, 
of  land  received  to  identify  land  devised,  411. 
power  of  appointment  by,  not  executed  by  a  devise,  1165, 
in  execution  of  power  of  sale  when  defective  may  be  reformed,  1166- 
1168. 

DEFAULT  — 

elTect  of,  to  execute  a  power,  1171-1174. 

DEFEASANCE  — 

of  estate  on  non-performance  of  coriiliti(jn  sul)S((iu('nt,  645  047. 

DEFINITE  FAILURE  OF  ISSUK  — 

limitation  over  on,  does  not  (Ti-ate  an  estate  tail,  869,  870. 
(see  IJKATH;    I'aillhk  OF  I.SSLH) 


1434:  INDEX. 

Eefereucea  are  to  pages. 

DEFINITIONS  — 
of  will,  7. 
of  testament,  8. 
of  devise,  8,  9. 
of  codicil,  11. 
of  domicile,  39. 
of  chattels  real,  66. 
of  testamentary  capacity.  111,  113. 
of  an  insane  delusion,  119,  120. 
of  lucid  interval,  131. 
of  idiot,  158. 
of  imbecile,  159. 
of  undue  influence,  180. 
of  nuncupative  will,  236. 
of  end  of  the  will.  251,  253. 
of  interested  witnesses,  284,  285. 
of  re-execution,  295. 

of  revocation,  express  and  implied,  803,  303. 
of  estate,  396. 
of  tenement,  403. 
of  messuage,  403. 
of  premises,  404. 
of  appurtenance,  404. 
of  close,  404. 

of  adjacent,  adjoining  and  contiguous,  408. 
of  effects,  415-417. 
of  chattels  and  goods,  418. 
of  movables,  419. 
of  personal  property,  414. 
of  et  coetera.  414. 
of  home.  430. 
of  devise,  430. 

of  share,  part  or  portion,  432. 

of  also,  likewise,  furthermore,  moreover,  item,  etc.,  433-434. 
of  lapse,  436. 
of  general  legacy,  554. 
of  demonstrative  legacy,  555,  55S, 
of  specific  legacy,  557. 
of  satisfaction,  589. 

of  conditions,  subsequent  and  precedent,  636,  637. 
of  childless,  without  children,  etc.,  744,  746. 
of  family,  778,  n..  779,  n. 
of  heirs  as  purchasers,  811,  813. 
of  rule  in  Shelly's  case,  878,  893,  n. 
of  annuities  and  rent  charges,  1078-1080. 
of  equitable  conversion,  955. 
of  gift  causa  mortis,  1063. 
of  equitable  election,  1000. 
of  a  use,  1108. 
"    of  a  trust  estate,  1109. 
of  a  charity,  1186. 
of  poor,  1208-1310. 
of  indefinite  failure  of  issue,  1270. 
of  vested  remainder,  1341. 
of  London,  1255. 
of  city,  1256. 

DELAY  — 

right  to  elect  not  lost  by,  1033. 

DELIRIUM  — 

lucid  interval  in,  137. 


INDEX.  1t1:35 

References  are  to  pages. 

DELIRIUM  TREMENS  — 
described,  151. 
temporary  character  of,  152. 
capacity  of  one  suffering  from,  153.  154. 
destruction  of  will  by  testator  in  fit  of,  307. 

DELIVERY  — 

of  instrument  as  evidence  of  its  non-testamentary  character,  53. 

DELIVERY .  OF  GIFT  — 
necessity  for,  1068. 
character  and  mode  of,  1064,  106S. 

when  it  may  be  symboHc,  as  by  giving  a  key,  1068,  1069. 
of  choses  in  action,  1070-1074. 

DELUSION  — 

when  produced  by  the  use  of  drugs,  156. 

cunning  of  persons  who  have,  117. 

definition  of,  119,  120. 

is  not  mere  eccentricity,  120-124. 

must  influence  the  provisions  of  the  will,  125. 

mistake  and  prejudice  are  not,  126,  127. 

jealousy  and  suspicion  ai-e  not,  127,  128. 

belief  in  spiritualism  and  witchcraft  is  not,  128. 

DEMONSTRATIVE  LEGACIES  — 
defined,  555,  556. 

effect  of  loss  of  fund  from  which  payable,  555. 
legacy  of  purchase-money,  556. 
legacy  of  interest  on  a  bond,  556. 
of  debt  not  adeemed  by  payment.  556. 
annuity  payable  out  of  specified  fund,  1086. 

DEPRECIATION  — 

trustee  not  responsible  for  unexpected,  1147. 

DESCENDANTS  — 

legal  status  of,  conferred  upon  adopted  child,  717,  718. 

included  in  gift  to  children,  712. 

includes  lineal  relations,  925,  926. 

distribution  among,  927,  928. 

title  of,  substituted  to  prevent  lapse,  453,  454. 

includes  grandchildren  and  great-grandchildren,  926. 

descendants  of  A.  "now  living,"  926. 

"nearest  in  blood,"  926. 

devise  to  children  and  their  descendants,  926,  n. 

"relationship  by  lineal  descent,"  926,  n. 

not  equivalent  to  relations,  926,  n. 

rule  in  Shelly's  case  applies  to  a  remainder  to,  890. 

(see  also  Classes.) 

DESCENT  — 

heir  takes  by.  under  rule  in  Shelly's  case,  878-908. 
statutes  modifying  laws  of,  H'.id. 
when  issue  take  by,  908-917. 
(see  ilEiiis.) 

DESIRE  — 

trust  created  by  words  of,  1154,  1154,  u.,  1155,  n.,  1159. 

DESK  — 

Ijfcjuost  of  the  contents  of,  420,  427. 

DESTRUCTION- 

ittij)licd  from  (lisapix-araiicr'  of  will,  ;nH-;j21,  372. 

of  will,  when  acciiliMitai,  :!0S. 

of  will  not  by  direction  of  the  testator,  308,  371. 


1436  INDEX. 

References  are  to  pages. 

DESTRUCTION  (continued)  — 

silence  of  tlie  testator  may  ratify.  .308. 
no  revocation  when  incomplete,  300,  310. 
revocation  by,  of  duplicate  wills,  355,  356. 

DEVASTAVIT  — 

does  not  give  legatee  right  to  call  on  devisee,  534. 

legatee  cannot  be  called  ui)on  for  contribution  in  case  of,  534,  585» 

estoppel  of  legatee,  534,  535. 

DEVISE  — 

defined,  8,  9,  417,  430. 

DEVISEES  — 

meant  by  reference  to  "  heirs  before  mentioned,"  835,  826. 

DIPLOMATIC  SERVICE  — 
domicile  of  persons  in,  41. 

DISAPPEARANCE  OF  WILL  — 

presumption  of  i-evocation  from,  318,  373. 

DISASTER  — 

survivorship  in  case  of,  2G-28. 

DISCRETION  — 

in  trustee  to  exercise  power  of  sale,  957-960. 

in  the  case  of  precatory  trusts,  1157-1159,  1160. 

of  donee  of  power  may  prevent  its  execution  in  equity,  1171-1175,  1237, 

1238,  1246-1252. 
of  trustees  to  postpone  sale  does  not  create  perpetuity,  1357,  1358. 

DISCRIMINATION  — 

by  testatoi-,  is  not  proof  of  lack  of  capacity.  145-148. 

by  testator  as  proof  of  fraud  and  undue  influence,  191-193. 

DISEASE  — 

capacity  as  affected  by,  157,  158. 

DISSEISIN  — 

actual  and  by  election,  58. 

DISTRIBUTION  — 

of  gift  to  children  after  life  estate  in  parent,  731-734. 

is  per  capita  when  equal  division  directed,  736,  737. 

among  children  may  be  per  stirpes,  737-739. 

per  stirpes  when  children  take  by  substitution,  739.' 

to  individuals  and  children,  740. 

among  "  family  "  is  per  stirpes,  781. 

among  "relations  "  is  per  capita,  790,  791. 

among  legatees  as  "  next  of  kin  "  is  per  stirpes,  839, 840. 

among  "  personal  representatives,"  850,  851. 

per  capita  among  class  when  directed  share  and  share  alike,  833,  833. 

among  heirs  is  per  stirpes  when  of  different  stocks,  834-836. 

(see  Equality  of  Division.) 

DIVIDENDS  — 

apportionment  of,  as  between  life  tenant  and  remainderman,  581-586. 

DIVISION  — 

words  of,  create  tenancy  in  common,  701,  703. 

direction  for,  does  not  convert  land  into  money,  962. 

direction  for,  may  create  vested  estate  in  land,  1307,  1308. 

direction  for,  yvith  no  words  of  gift,  1308,  1309. 

effect  of  postponement  of,  for  benefit  of  the  estate,  1309. 

direction  for,  at  death  of  life  tenant,  1310. 

direction  for,  among  a  class,  1310. 

(see  Classes;  Equality  of  Division;  Distribution.) 


INDEX.  1137 

References  are  to  pages. 

DIVOECE  — 

wife  granted,  may  change  her  domicile,  43. 
revocation  of  will  of  husband  by,  -JGO. 
conditions  requiring,  are  void,  681,  683. 

DOMESTIC  ANIMALS  — 
on  farm,  4'25. 

DOMICILE  — 

law  of,  applied  to  legacies,  30. 

of  widow  electing,  33, 

defined,  38,  39. 

in  town  and  country,  39. 

presumption  of  continuance  of,  40. 

change  of.  40. 

when  abroad  in  employ  of  government,  41,  43. 

change  of,  for  benefit  of  health,  43. 

of  married  women  and  minors,  43,  43. 

declarations  of  testator  as  evidence  of,  43,  44. 

DONATIONS  MORTIS  CAUSA  — 
defined,  1063,  1064. 

classifications  of,  in  the  Roman  law,  1003. 
status  of,  in  the  English  courts,  1064. 
distinguished  from  legacies,  1065. 
no  reference  to  transfers  of  real  property,  1065. 
probate  not  required,  1066. 
donee  takes  subject  to  donor's  debts,  1066. 
necessity  for  immediate  apprehension  of  death,  1067. 
delivery  required  and  gift  revocable,  1067. 
character  of  the  delivery,  1067-1069. 

of  savings  bank  books  and  negotiable  instruments,  1070-1074, 
may  be  in  trust,  1074,  1075. 
burden  of  proof  to  show,  1075,  1076. 

DOUBLE  CONTINGENCY  — 

lapse  in  the  case  of  a  gift  upon,  447-449. 

DOUBLE  CONVERSION  — 
defined.  990. 

DOUBLE  PORTIONS  — 

presumption  against,  591. 

DOWER  — 

conflict  of  laws  as  to  bequests  in  lieu  of,  33. 

legacy  m  lieu  of  does  not  abate,  587. 

exoneration  from  incumbrances  of  land  taken  in  lieu  of,  530,  531. 

in  mortgaged  lands,  531,  533. 

right  of,  as  against  creditors,  533. 

interest  on  legacies  in  lieu  of,  578. 

legacy  by  implication,  from  false  statement  that  devise  is  subject  to, 

G39. 
rule  in  Slielly's  case  gives  the  widow,  907. 
in  money  to  be  invest<'(l  in  land,  985,  986. 

election  may  be  revoked  when  based  on  fraud  or  mistake,  1013-1016. 
election  in  case  of,  at  common  law,  1036. 
presumi)tion  that  widow  is  to  take  both  legacy  and,  1037. 
intention  that  h-gricy  is  in  lieu  of,  must  ap|)oar,  1037.  1038. 
intfTition  to  raise  an  cli-ctioii  need  not  Ix;  cxprrss,  1037-1039. 
a  general  devise  t(j  the  widow  is  not  l)y  implication  in  lieu  of,  1040. 
devise  of  land  for  sale  is  not  in  lieu  of,  1010. 

no  eh'ction  by  (h-visc  with  provision   for  an  equal  division,  1043,  1044, 
aimuity  or  charge  docs  not  raise  an  election,  lOM,  1045. 
cllect  of  an  election  to  take  devise  in  lieu  of,  1045. 


143S  INDEX. 

References  are  to  pages. 

DOWER  (continued)  — 

devise  expressly  in  lieu  of,  does  not  bar  share  of  personal  estate,  104G, 

104G,  n. 
devise  in  lieu  of,  does  not  bar  widow's  right  as  heir  of  her  husband, 

1047,  1048. 
acceptance  of  devise  in  lieu  of,  bars  dower  in  lands  not  devised,  1048. 
acceptance  of  a  life  estate  may  bar  dower  in  the  remainder  in  fee, 

1049. 
effect  of  a  remarriage  on,  1049. 

compensation  to  widow  when  devise  in  lieu  of,  fails,  1030,  1051. 
statutes  regulating  election,  1051,  1052. 
presumption  that  a  devise  Is  in  lieu  of,  1051. 
time  witliin  which  widow  must  elect,  1053. 
how  widow's  election  must  be  made  and  proved,  1053. 
(see  also  Community  Propekty;  Election;  Curtesy.) 

DRAFT  OF  WILL  — 

is  not  primary  proof  when  will  is  lost,  374^ 
use  of,  to  refresh  memory  of  witness,  370. 

DRAUGHTSMAN  — 

presumption  of  fraud  in  case  of  legacy  to,  194,  198. 

DRUGS  — 

habitual  use  of,  affects  capacity,  156,  157. 

DUPLICATE  WILLS  — 

disposition  of  the  copies,  356. 
presumption  from  destruction  of  one  copy,  356. 
presumption  from  disappearance  of  one  copy,  357. 
effect  of  interlineations  in  one  copy,  357. 

DWELLING-HOUSE  — 
occupation  of,  410. 

E. 

EASEMENTS  — 

under  a  devise  of  property,  400,  405. 

ECCENTRICITY  — 

distinguished  from  delusion,  120,  124. 
not  alone  insanity,  122. 
tendency  towards,  122. 
evidence  to  prove,  123,  124. 
gradual  growth  of,  123. 

ECCLESIASTICAL  COURTS  — 
necessity  for  probate  in,  370. 
jurisdiction  of,  over  lost  wills.  370. 
jurisdiction  of,  over  legacies,  G51. 

EDUCATION  — 
bequests  for,  98. 

private  school,  library  or  museum  is  not  a  public  charity,  1196-1198. 
bequests  for,  are  valid  as  public  charitable  gifts,  1204,  1205. 
of  poor  children,  colored  children  and  poor  students,  1205. 
in  science,  1206. 
miscellaneous  charitable,  1219,  1220. 

EFFECTS  — 
defined,  415. 

mean  primarily  personal  property,  414,  415. 
may  be  modified  by  rule  of  ejusdem  generis,  415,  416. 
may  pass  real  property,  416,  417. 


INDEX.  1430 

References  are  to  pages. 

EJECTMENT  — 

cannot  be  brought  by  alien,  84. 

by  tenants  in  common.  700. 

maj'  be  brought  to  enforce  right  of  entry,  640. 

EJUSDEM  GENERIS  — 
defined,  413.  414. 

rule  of.  applied  to  word  "estate,"  399. 
applied  to  gifts  of  goods  and  chattels,  418, 419. 

ELDEST  CHILD  — 

illegitimate  child  cannot  take  as,  754. 

ELDEST  MALE  LINEAL  DESCENDANT  — 
construed,  927. 

ELDEST  SON  — 

rule  in  Shelly's  case  applies  to  a  remainder  to,  890. 

as  a  word  of  purchase,  866. 

usually  words  of  limitation  creating  fee  tail  in  father,  866,  890. 

limitation  over,  on  definite  failure  of  issue  of,  866. 

ELECTION  — 

definition  and  history  of,  1000. 

origin  in  the  Roman  law,  1001. 

early  cases  of.  1002,  n. 

the  knowledge  of  the  testator  as  to  the  ownership  of  the  property,  1003, 

whether  based  on  compensation  or  on  forfeiture,  1005,  1006. 

measure  of  compensation,  1007. 

presumption  against  necessity  for,  1008, 

testator  must  intend  to  dispose  of  the  property  of  another,  1008. 

where  testator  has  only  a  limited  interest,  1010,  1012,  1013. 

intention  to  create  a  case  for,  must  be  clear,  1011. 

is  not  revocable  if  made  in  good  faith,  1013. 

person  who  is  to  elect  must  have  opportunity  for  obtaining  informa- 
tion. 1014. 

if  made  under  mistake  of  fact  or  procured  by  fraud,  will  be  revoked, 
1016. 

none  where  will  is  invalid,  1011,  1019,  1020, 

under  will  of  married  woman  disposing  of  property  not  settled  to  her 
separate  use,  1019. 

the  heir  need  not  elect  when  will  is  invalid,  1019. 

applied  to  lands  acquired  after  the  execution  of  the  will,  1020. 

no  necessity  for,  when  party  takes  benefit  indirectly,  1021. 

must  be  made  within  a  reasonable  time,  1022. 

in  statutory  period,  1022, 

parol  evidence  to  show  intention  to  require,  1023. 

what  constitutes,  1024. 

by  expressions  of  satisfaction,  1024, 

1)resumption  of,  from  possession,  1024. 
)y  widow  or  husband,  1025, 

not  material  tliat  testator  supposed  he  owned  property  devised,  1026. 
for  infants  and  other  incompetents  by  the  court,  1026-1028. 
married  woman  may  elect  in  equity,  1027, 
by  creditors,  1028, 

between  inconsistent  gifts  in  the  same  will,  1028, 

by  the  heir  in  case  of  a  will  devising  land  partially  invalid,  1029-1031. 
under  powers  of  appointment,  10'i2,  1033. 

among  tenants  in  common,  and  between  life  tenant  and  remainder- 
men, 1033.  lf)34, 
riglit  of,  does  not  fmss  to  the  heir.  1034-1036. 
in  its  application  to  tin;  riglit  of  dower,  1030, 
int<'nti(jr)  tf)  put  widow  to  election  must  clearly  appear,  1038. 
general  dr-vise  of  land  doeH  not  put  widow  to,  1((1(). 
devi.4e  in  trust  to  aell  does  not  raise  |)resumpliou  of,  1040,  1041. 


14-10  INDEX. 

References  are  to  pages. 

ELECTION  (continued)  — 

direction  for  an  equal  division  raises  no  case  for,  1043-1045. 

the  effect  of,  by  tiie  widow,  I04r)-1049. 

in  lieu  of  dower,  does  not  bar  distributive  share,  1046, 

compensation  to  widow  when  devise  in  lieu  of  dower  fails,  1050,  1051. 

statutes  regulating,  1051,  105'3. 

of  devises  of  con)inunity  propertj'.  1054-105G. 

of  devise  of  the  homestead.  1056-1059. 

of  a  devise  of  insurance  money,  1058-1061. 

as  rt\gards  the  right  of  curtesy,  1059-1061. 

by  widow,  conflict  of  laws,  32. 

by  a  creditor  of  testator  to  whom  legacy  has  been  given,  670,  671. 

between  gift  causa  mortis  and  a  legacy.  1066,  n. 

distinguished  from  satisfaction,  590,  591. 

ELECTION  TO  TAKE  PROPERTY  UNCONVERTED  — 

may  be  made  by  absolute  owners,  who  must  be  sui  juris,  992. 

equity  may  make,  for  incompetent,  993. 

all  persons  must  concur  in.  993,  994. 

must  be  made  before  sale  has  taken  place,  991 

what  constitutes,  994,  995. 

by  remaindermen,  996, 

by  tenant  in  tail,  997. 

by  person  in  whose  hands  the  money  is  "at  home,"  997,  998. 

EMBLEMENTS  — 

are  chattel  interests,  412. 
pass  to  devisee  of  land,  412. 
grass  and  timber  are  not,  411,  412. 

EMINENT  DOMAIN  — 

conversion  under,  978-980. 

EMPLOYEE  — 

of  the  testator,  gifts  to,  805,  806. 

END  OF  THE  WILL  — 
defined,  250,  251. 
witnesses  must  subscribe  at,  265. 

ENTIRETY,  ESTATES  BY  — 

cannot  be  incumbered  by  either  husband  or  wife,  707. 

creation  of,  by  devise,  707-709. 

effect  on,  of  statutes  abolishing  joint  tenancy,  709. 

effect  of  statutes  regulating  property  rights  of  married  women,  710. 

devisable  nature  of,  64,  65. 

ENTRY  — 

incorporated  in  will  by  reference,  381,  383. 
when  conclusive  on  legatee,  383. 
of  physician  to  prove  age,  727. 

ENTRY,  RIGHTS  OF  (see  Rights  of  Entry). 

EN  VENTRE  SA  MERE  — 

fiction  that  child  is  born,  746, 

included  under  children  born  in  life-time,  747. 

may  take  under  devise  to  issue,  747. 

must  be  born  alive,  748. 

fiction  of  actual  birth  indulged  to  benefit  child,  740. 

(see  Children.) 

EPILEPTIC  — 

capacity  of,  157,  158. 


INDEX.  14:il 

References  are  to  pages. 

EQUALITY  OF  DIVISION  — 

direction  for,  indicates  "  personal  representatives  "  means  next  of  kin, 

850,  851. 
indicates  tenancy  in  common,  701. 
among  heirs  of  tlie  body,  870-874. 
in  devise  of  a  remainder  to  issue,  913.  914,  916. 
does  not  raise  case  for  an  election,  1043,  1044. 
indicates  takinjiper  capita,  737,  832.  839,  840. 
(see  Division;  Per  Stirpes;  Distribution.) 

EQUITY.  JURISDICTION  OF  — 
over  charities.  1186-1194, 
to  construe,  608-610. 
over  resulting  trusts,  627,  628. 

to  decree  specific  performance  of  contract  to  devise,  387. 
over  assets  of  testator,  514. 
to  establish  lost  wills,  369,  370. 
in  case  of  trusts  ex  malefacio,  218-223. 
in  case  of  homicide  of  the  testator  by  a  legatee,  224. 
over  municipal  corporations  when  trustees,  101,  103. 
to  inquire  into  action  of  trustee  refusing  consent  to  niarriage,  658. 
rule  in  Shelly "s  case  is  applicable  in,  900,  901. 
over  dower  and  curtesy.  984-986. 
over  trusts,  1092-1109,  1125-1127,  1131-1134. 

to  aid  the  execution  of  powers  defectively  executed,  1165,  1166. 
in  case  of  non-execution  of  imperative  powers,  1169,  1170. 
in  England  and  America  to  apply  cy  pres  doctrine  to  charities,  122ft- 

1233. 
to  appoint  trustee  of  charitable  trust,  1236-1243. 
will  not  enforce  a  private  charity,  1195-1197. 
to  appoint  new  trustee,  1125-1127,  1129. 
to  remove  trustee,  1131,  1132. 

ERASURE  — 

as  a  revocation,  311,  312. 

of  names  of  testator  or  witnesses,  312,  313,  317. 

(see  Blanks.) 

ERRONEOUS  RECITALS  (see  Recitals). 

ESCROW  — 

delivery  of  deed,  54. 

ESTATE  — 

usually  includes  real  property,  397. 

in  introductory  clause.  397. 

restricted  by  words  of  locality,  397. 

sufliciency  of,  to  pass  a  fee  simple,  308,  933. 

includes  jjorsonal  property  only,  .309,  400. 

effect  of  rule  of  ejutidcvi  r/nneris,  399,  400. 

indicates  quantity  or  location  of  property,  932. 

devise  of,  creates  fee  though  describing  land  by  its  location,  934 

devise  of,  does  not  enlarge  express  gift  of  life  interest,  934. 

ESTATF:S  IN  FEE  TAIL  — 

nature  and  origin  of,  800.  801. 
statute  of  dc  donin,  860,  H(\\. 
by  in  formal  wonis,  Hfil.  H(52. 
by  limitation  to  "children,"  862. 
created  by  limitation  to  male  heirs,  803,  803. 
when  si)ecial,  male  or  female,  Wil. 
by  particular  wife  or  husband.  H(l|. 
created  by  limitation  to  "son,"  m;:,. 
created  by  limitation  to  first  or  eMest  son,  800,  890. 
01 


1442  INDEX. 

I 

References  are  to  pages. 

ESTATES  IN  FEE  TAIL  (continued)  — 

life  estate  not  enlarged  to,  by  limitation  over  on  indefinite  failure  of 

issue,  868,  870. 
none  by  implication  on  definite  failure  of  issue,  870,  871,  890. 
effect  of  limiration  to  heirs  of  the  body  as  tenants  in  common,  871,  872. 
in  the  United  States,  874,  875. 

regulation  of,  by  statute  in  the  United  States,  875-877. 
created  by  devise  to  A.  and  his  issue,  911. 
created  by  devise  to  A.  for  life,  remainder  to  his  issue,  912. 
b}'  implication,  not  enlarged  by  a  personal  cliarge,  U19. 
under  the  rule  in  Shelly 's  case,  871,  878,  889-892. 
by  implication  on  indefinite  failure  of  issue,  624,  625,  867,  868, 
words  "  heirs  of  the  body  "  not  varied  by  direction  for  equal  division, 

870-873. 
■words  of  limitation  and  inheritance  added  to  "heirs  of  the  body,"  874. 
future  use  after,  is  not  a  perpetuity,  1108. 
tenant  of,  may  defeat  an  executory  devise,  1345,  1346. 
reversion  after,  may  be  devised,  59,  61. 
tenancy  in  common  in,  703,  871. 
by  devise  to  A.  and  his  children,  712,  770. 
(see  Shelly 's  Case;  Heirs  of  the  Body;  Tenancy  in  Common.) 

ESTATES  PER  AUTRE  VIE  — 
are  freeholds,  67. 
special  occupant  of,  68. 
devisable  by  statute  of  frauds,  67. 

where  words  of  inhei'itance  are  not  employed  in  their  creation,  68. 
general  occupant  of,  08. 
may  devolve  as  personal  property,  70. 

ESTOPPEL  — 

of  trustee  to  repudiate  his  trust,  1125,  1126,  1126.  n. 

of  beneficiary  to  dispute  sale  by  trustee  to  himself,  1141,  1142. 

(see  Election.) 

ET  CETERA  — 

■when  the  words  are  employed  with  others  of  wide  meaning,  414. 
rule  of  ejusdem  generis  applied,  414. 

EVIDENCE  — 

of  circumstances  to  show  fraud  and  undue  influence,  182,  187,  188. 
competency  of,  in  suit  to  establish  lost  will,  373,  374. 
(see  Declaration;  Parol.) 

EXECUTION  — 

of  powers  of  appointment.  1164-1184. 

of  power  of  disposal  for  support,  942. 

undue  influence  must  exist  at  moment  of,  182,  184,  185. 

secrecy  of,  showing  undue  influence,  186,  187. 

burden  of  proof  to  show,  of  lost  will,  373-375. 

one  witness  suflficient  to  show,  where  will  is  lost,  876. 

death  of  legatee  before,  455, 

when  will  speaks  from  date  of,  22,  23. 

EXECUTION  OF  WILL  — 

regulated  by  statute  in  force  at  date  or  at  the  death  of  the  testator, 

23,  24. 
■will  must  be  written,  246. 
may  be  on  printed  blank,  247. 
will  need  not  be  dated,  247. 
sealing  not  necessary,  247,  248. 
■will  ma\'  be  in  pencil,  248. 
signature  of  testator  at  end,  249,  250. 
end  of  the  will  defined,  250,  251. 
whether  will  not  signed  at  end  is  partly  void,  251-254. 


INDEX.  1443 

References  are  to  pages. 

EXECUTION  OF  WILL  (continued)  — 

the  testator's  signature  by  mark,  254,  255. 

guiding  the  hand  of  the  testator,  256. 

the  testator's  name  signed  by  another,  256,  258. 

acknowledgment  of  signature  by  the  testator,  259-261. 

the  request  to  the  witnesses,  261,  2G2. 

the  competency  of  the  witnesses,  268-265. 

place  for  the  signature  of  tlie  witnesses,  265,  266. 

witnesses  need  not  sign  in  the  presence  of  each  other,  271,  272. 

witnesses  may  sign  b)'  mark,  272-274. 

attestation  by  minors.  274. 

attestation  clause  as  proof  of,  276-278. 

necessit\'  for  publishing  the  will,  278. 

witnesses  must  attest  in  the  presence  of  the  testator,  267-271. 

mode  of  publishing  the  will,  279-282. 

the  competency  of  the  witnesses,  282-287. 

substitutionary  proof  if  attesting  witness  is  absent,  288,  291. 

impeachment  of  hostile  attesting  witness,  291-293. 

EXECUTOR  — 

may  be  appointed  by  will  not  disposing  of  property,  8. 
origin  of  the  office  of,  10. 
necessity  for  appointment  of,  10,  11. 
appointment  of,  need  not  be  in  express  terms,  11. 
wlio  may  be  appomted  as,  11. 
administrator  c.  t.  a.  in  place  of,  11. 
takes  title  to  all  personal  property,  10,  66. 
has  right  to  sue  on  testator's  contracts,  65. 
chattels  i-eal  go  to,  67.  68. 

may  take  as  special  occupant  in  estate  per  autre  vie,  68. 
his  statements  do  not  bind  legatees,  229. 
his  right  to  fees.  282. 

competency  as  an  attesting  witness,  282,  283. 
appointment  of,  wlien  revoked  by  express  revocation,  349. 
legacies  to,  when  revoked,  350. 
in  foreign  will,  his  powers  in  England,  385. 
separate,  for  foreign  will,  385. 

may  be  sued  for  a  breach  of  testator's  contract  to  bequeath,  388. 
his  right  to  emVjlements,  411,  412. 

statutory  regulation  of  his  right  to  growing  crops,  412. 
legacies  to,  may  lapse,  440. 

vesting  and  jjayment  of  legacy  dependent  upon  power  of,  459,  460. 
may  exonerate  mortgaged  land,  528-534. 
liable  personally  when  property  is  wasted,  534. 
legacies  to.  as  mark  of  friendsliip,  571. 
right  to  sue  him  for  legacy,  574. 
tender  of  legacy  b\',  574. 
must  pay  legacies  promptly,  575,  576. 

iiiav  be  charged  with  compound  interest  for  neglect  to  keep  funds  in- 
vested, 576. 
right  of,  to  set  oflf  debt  of  legatee,  606. 
may  ai)i)ly  for  constni(;tion  of  will,  609,  610. 
l)Ower  (if  sale  conferred  on,  957  et  se(|. 

entitled  to  |)urchase -money  of  land  agreed  to  bo  sold,  972,  976. 
must  j>ay  for  lands  foiitractt'd  to  lie  purchased.  971. 
jfersrjMal  rcprcMMilativi'  is  e<|uivalent  to,  HI6,  847. 
is  ordinarily  a  word  of  limitation,  852,  b53. 
in  a  marriage  settlement,  852. 

equivalent  to  ne.xt  of  kin,  and  a  word  of  purchase,  853. 
u.HUally  takes  for  benelit  of  the  estate.  H53,  854. 
may  take  for  his  own  benefit,  854.  855. 

w  liat  language  shows  that  he  is  to  take  for  the  CHtato.  H55,  850. 
gift  to,  "  in  trust,''  not  conclusive  that  he  in  not  tutuku  beneficiully,  855. 


1444  INDEX. 

References  are  to  pages. 

EXECUTOR  (continued)  — 

bequest  to,  for  his  own  benefit,  856. 

gift  to  executor  not  conditioned  upon  his  accpptance  of  office,  856-858. 

gift  to.  by  proper  name,  presumed  to  be  beneficial,  857. 

presumption  that  gift  to,  is  conditioned  on  acceptance,  not  conclusive, 
858. 

if  bequest  to,  is  through  motive  of  friendship,  then  not  conditional,  858. 

powers  conferred  upon,  to  distribute  in  cliarity,  1243-1250. 

acceptance  of  oftice,  not  election  to  take  under  will,  1025. 

power  in,  to  distribute  among  charities,  does  not  create  a  perpetuity, 
1362. 

right  to  elect  may  pass  to,  1036. 

execution  of  power  by  survivor  of  several  executors,  valid  by  statute, 
1121,  1123.  1124. 

power  of,  annexed  to  the  office,  executed  by  the  survivor,  1122. 

all  must  join  in  execution  of  power  if  all  alive,  1122. 

direction  to  sell  land  confers  power  of  sale,  1116,  1118. 

lands  go  to  heirs  or  devisee  subject  to  the  power  of  sale  in,  1116,  1117. 

extinguishment  of  power  of  sale  in,  1117. 

has  no  power  over  land  unless  conferred,  1118. 

power  of  sale  in,  does  not  include  power  to  mortgage,  lease  or  build, 
1119. 

has  power  to  sell  land  for  payment  of  debts,  1121. 

confirmation  of  sale  of  land  by,  1121. 

power  given  to,  as  an  individual,  does  not  go  to  successor,  1123. 

power  to  be  exercised  ratione  ojjlcli  survives,  1123,  1124,  n.,  1130,  n. 

discretionary  power  in,  cannot  be  exercised  by  administrator  with  the 
will  annexed,  1123,  1124. 

cannot  delegate  discretionary  power,  1124. 

power  of,  extinguished  when  no  longer  needed,  1124,  1180. 

power  of,  may  endure  though  trust  has  expired,  1125. 

■when  liable  for  co-executor's  breach  of  trust,  1138,  1139. 

effect  of,  joining  in  a  receipt,  1133. 

purchaser  from,  need  not  see  to  application  of  purchase-money,  1148. 

purchaser  from,  having  notice  of  intention  to  misapply  money,  is  lia- 
ble. 1150,  1151. 

(see  also  Power  of  Sale:  Power  of  Appointment;  Personal  Rep- 
resentatives; Trust  Estate;  Trustee.) 

EXECUTORY  DEVISES  — 

dependent  on  death  of  first  taker,  459  et  seq. 

when  they  may  be  devised,  56-04,  1289,  1333. 

defeated  by  a  prior  tenant  leaving  children,  622. 

void  when  following  an  indefinite  failure  of  issue,  1271,  1276-1278. 

fee  is  not  in  abeyance  by,  1288. 

defined,  1329-1331. 

fee  to  vest  in  future  given  bv,  1330. 

not  affected  by  act  of  holder  of  precedent  estate,  1108,  1330,  1331,  1341. 

not  valid  after  absolute  estate  in  fee  simple,  1331. 

effect  of  the  failure  of,  1331,  1332. 

the  alienation  of,  1289,  1333. 

created  by  court  to  carry  out  the  intention  of  the  testator,  1343,  1344. 

distinguished  from  remainders,  1344. 

rule  of  perpetuity  applied  to,  1344-1346. 

after  a  charity,  may  be  void,  1363. 

assimilate  to  future  uses.  1108. 

not  destroyed  by  destruction  of  particular  estate,  1108. 

may  be  limited  after  a  fee  conditional,  1108. 

to  classes,  may  not  create  jjerpetuity  if  severable,  1306,  1368. 

EXECUTORY  TRUSTS  — 
defined,  896,  897. 

distinguished  from  executed  trusts,  897. 
rule  in  Shelly's  case  not  applied  to,  881,  883,  898,  900. 


INDEX.  Ii45 

References  are  to  pages. 

EXECUTORY  TRUSTS  (continued)  — 

directions  to  purcliase  and  settle  land  ai'e,  900. 
examples  of,  901.  901,  n. 
(see  also  Trcst  Estatk) 

EXONERATION  — 

of  personal  property  from  the  debts  of  the  testator,  516-524. 
of  land  devised  in  lieu  of  dower,  1030. 

EXPECTATION  — 

of  heir  or  legatee  is  not  devisable,  61,  64. 
of  reward,  is  not  devisable,  63. 
trust  created  by  words  of,  1158. 

EXPERT  EVIDENCE  — 

to  i^rove  foi'eign  law,  37,  38. 

of  insanity,  138.  139. 

qualifications  of  the  witness  to  mental  condition,  140. 

EXPRESS  CONDITIONS  (see  Conditions). 

EXPRESS  REVOCATION  (see  Revocation  op  Wills). 

EXTINGUISHMENT  OF  POWERS  — 
by  release,  1179. 

none  by  failure  of  donee  to  exercise  it,  when  special,  1179. 
none  by  death  of  donee,  1179. 
occurs  when  power  is  no  longer  needed,  1117,  n.,  1124, 1179, 1180, 1189» 

EXTRINSIC  WRITINGS  (see  Incorporation  of  Writings). 

F. 

FAILURE  OF  ISSUE  — 

presumption  that  it  is  ind<efinite.  1269.  1270. 

executory  devise  after  indefinite  failure  is  void,  1271,  1276-1278. 

conditional  fee  created  by  limitation  after  a  definite  failure  of  issue, 

1-272-1275. 
remoteness  of  a  limitation  over  after,  when  it  is  indefinite,  1276-1278. 
is  definite  if  the  issue  of  the  testator  is  meant,  1277. 
is  definite  if  failure  is  on  death  "under  majority,"  1277,  1278. 
definite  failure  meant  by  devise  to  persons  "then  surviving,"  1278,  1279, 
meaning  of,  when  coining  after  death  of  first  taker,  1279,  1280. 
strictly  construed  in  case  of  personal  property,  1281. 
cross-remainders  by  implication.  1281-1284. 
■  estate  tail  by  implication,  when  definite,  625,  867-869. 
(see  Death  'WiTiiouT  Issue.) 

FALSE  STATEMENTS  — 

power  of  testator  to  bind  creditors  by,  671. 
employed  to  prevent  revocation,  300,  309. 
wills  procured  by,  are  invalid,  217,  218. 
(see  Recitals.) 

FAMILY  — 

condition  forbidding  sale  of  land  out  of,  is  valid,  087. 

funds  for  sup|Kjrt  of,  not  lialjle  for  father's  debts,  O'JO,  697. 

gift  to,  when  void  for  uncertainty,  779. 

equivalent  to  ln-ir,  778,  779. 

e(|uivalcnt  to  children.  779,  781.  783. 

f(|uival('nt  to  relations  or  next  of  kin.  7S2-7.''4. 

as  a  word  of  limitation  cre.itirig  a  b-e  t.iii,  H(i2. 

precatory  trust  for  thf  bi-m-fit  of.  IIV.I.  I  Mil,  1162. 

a  ilirection  to  ilivide  a  fund  among,  if  "  in  need  or  poor,"  is  not  a  i)ul>- 

lic  frhurity,  1 197. 
coiidilioii  against  marriage  into.  6")"),  (i")(i,  n. 
compromise  in,  favored  in  law  ami  e<iiiity.  394, 


144(3  INDEX. 

References  are  to  pages. 

FARM  —  ^ 

defined,  406. 

may  include  any  quantity  and  kind  of  land.  407. 
adjacent  tracts  of  land  included  in  a,  407,  408. 
described  by  its  occupation,  409-411. 
parol  evidence  to  explain,  1401. 
stock  for,  included  under  bequest  of  movables,  419. 

FATHER  — 

his  power  to  change  domicile  of  child,  43. 

FEE  CONDITIONAL  — 

how  created,  6'32,  623,  638,  1273,  1275. 

FEE  SIMPLE  — 

restraints  on  alienation  of,  are  void,  489-493,  687-690. 

devise  of,  to  several  in  same  land,  491-493. 

by  implication,  on  attainment  of  majority,  631,  623,  667,  668. 

cut  down  by  death  under  majority,  (531-633. 

becomes  a  fee  conditional  when  it  is  to  go  over  on  death  without  chil- 
dren, 633,  633. 

failure  to  dispose  of,  in  equitable  interest  creates  resulting  trust,  637. 

repugnant  conditions  on  devise  of,  489-493,  649,  945-947. 

defeasible  on  remarriage  of  widow,  607. 

created  by  devise  to  parent  and  children,  770. 

turned  into  fee  tail  by  devise  over  on  an  indefinite  failure  of  issue,  625, 
867,  1373-1375. 

estates  tail  turned  into,  by  statute,  876. 

not  implied  from  power  of  sale  for  support,  940-943. 

not  implied  from  power  of  appointment  by  will,  944,  945. 

not  cut  down  by  devise  of  "  what  remains,"  945-947. 

devise  over  on  death  during  minority,  631-633,  947,  948. 

in  consumable  articles,  948,  949. 

by  bequest  of  rents  and  profits,  949,  950. 

English  statute  abolishing  necessity  for  words  of  inheritance,  951,  953. 

may  not  be  created  at  common  law  by  vague  words,  939-931. 

presumption  against,  when  words  of  inheritance  not  used,  397,  930. 

effect  of  an  introductory  clause  in  creating,  933. 

created  by  a  devise  of  "  my  estate,"  397,  933,  933. 

effect  of  devise  of  an  estate  described  by  its  locality  to  create,  934. 

in  beneficial  interest  created  by  gift  of  the  legal  estate  in  fee,  935. 

words  of  inheritance  not  necessary  for,  933. 

created  by  devise  to  A.  and  his  "family,"  or  to  "A.  forever,"  935. 

direction  to  pay  debts  and  legacies  may  enlarge  indefinite  devise  to, 
618,  936. 

inferred  from  general  power  of  disposal,  938. 

power  of  disposal  does  not  raise  an  express  life  estate  to,  938-940. 

in  trustee  descends  to  his  heirs,  1126. 

created  by  executory  devise,  1344-1346. 

created  by  a  trust,  without  words  of  inlieritance,  935,  1112-lll5. 

executory  devises  and  future  uses  may  be  limited  after,  1108. 

FEME  SOLE  — 

revocation  of  will  of,  bj'  marriage,  321. 

statutes  by  which  will  of,  is  revo!:ed  by  her  marriage,  322,  323. 

will  of,  executed  under  power  is  not  revocable,  323. 

FEMME  COVERTE  (see  Married  Woman). 

FEOFFMENT  — 

lands  conveyed  by.  1092. 
tenant  by,  could  not  alien,  1092. 
passed  legal  title,  1093. 
not  applicable  to  chattels,  1095. 


IXDEX,  1447 

References  are  to  pages. 

FEUDAL  SYSTEM  — 

influence  of,  on  the  testamentary  power,  5. 

FIRST  MALE  HEIR  — 

estate  tail  created  by  gift  to,  863. 

FIXTURES  — 

not  included  in  a  bequest  of  "household  furniture,"  425. 
go  with  a  devise  of  the  "house,"  406. 

FLATTERY  — 

is  not  undue  influence,  205,  206. 

FOREIGN  LANGUAGE  — 

when  translation  of  wills  written  in,  is  necessary,  203. 

FOREIGN  LAW  — 

not  judicially  noticed,  35. 
books  as  e%-idence  of,  30. 
parol  evidence  of,  37. 
presumption  as  to,  37. 

FOREIGN  WILLS  — 

not  admitted  to  English  probate,  384 

incorporated  in  home  will,  both  are  admitted  to  probate,  385. 

if  lengthy  may  be  omitted  from  record  of  probate,  385. 

executor  appointed  by,  385. 

separate  executor  for  foreign  and  English  wills,  385. 

FORFEITURE  — 

equitable  relief  from,  when  caused  by  neglect  of  trustee,  658. 

FORGERY  OF  WILL  — 
burden  of  proof,  231. 
reasonable  doubt  not  applicable  to,  232. 
relevancy  of  evidence  to  show,  232. 
expert  evidence  to  show,  233. 
evidence  of  other  forgeries,  233. 
proof  of  handwriting  by  non-experts  and  by  comparison,  234. 

FORGETFULNESS  — 

of  witness,  may  be  supplemented  by  attestation  clause,  276,  290,  291. 

FRAUD  — 

right  to  have  deed  set  aside  because  of.  may  be  devised,  60. 

classified  into  actual  and  constructive,  215,  216. 

proved  from  circumstances,  216. 

false  representations  may  constitute,  216,  217. 

trust  created  by,  218. 

in  substitution  of  wrong  will,  230.  231. 

election  procured  by,  may  be  revoked,  1014-1016. 

inferred  from  purciiase  by  a  trustee  for  himself,  1139-1143. 

liability  of  purchaser  for  application  of  purchase-money,  1151. 

may  inv;iliilate  execution  of  power,  1176. 

(see  Unule  Influence.) 

FREE  AGENCY  — 

must  have  been  overcome  to  constitute  undue  influence,  180. 

FREEHOLD  P:STATES  — 

estates  per  autre  vie  are,  66. 
diftinguished  from  leaseholds,  67,  n. 

FRIENDLY  SOCIETY- 

bociuest  to,  may  bo  void  as  a  charitable  bofinost,  1197. 

ri'vIENDS  — 

gifts  for  hospitality  by  a  mcmbiT  of  tlic  society  of.  1106. 

gift  to  meftiiig  Ikjuso  of,  ib  valid  tiiougli  unincorporated,  ll'.tK,  n. 


1448  INDEX. 

References  are  to  pages. 

FRUCTUS  INDUSTRIALES  — 

disposition  of,  as  between  devisee  and  executor,  412,  413. 

FUND  — 

devise  of  estate  in,  includes  interest  and  premiums,  400. 

FUNERAL  EXPENSES  — 

charged  expressly  upon  the  land,  519. 

FURNITURE  — 
of  ship,  423. 
(see  also  HOUSEHOLD  FURNITURE.) 

FURTHERMORE  — 
defined,  432-434. 

FUTURE-BORN  CHILDREN  — 
gifts  to,  are  valid,  720,  734-736. 
(see  Children.) 

FUTURE  ESTATE  — 

may  be  devised,  56-64,  1289. 

FUTURE  MARRIAGE  — 

children  by,  may  take,  718,  719. 

FUTURE  USES  — 

distinguished  from  contingent  remainders,  1104. 

may  be  vested  or  contingent,  1104. 

execution  of,  by  statute,  when  contingent,  1105. 

the  rule  of  scintilla  juris,  1106. 

divided  into  shifting  and  springing,  1105-1107. 

compared  with  executory  devises,  1108. 

(see  Trust  Estate.) 

G. 

GARDEN  — 

may  pass  with  house  in  devise  of  messuage  or  premises,  403,  404. 

GARDENER  — 

cannot  take  under  gifts  to  "servants  living  with  testator,"  806,  807. 
(see  Servants.) 

GENERAL  CLAUSE  — 

effect  of,  in  relation  to  the  rule  of  ejusdem  generis,  413. 

GENERAL  DEVISE  — 

will  pass  money  converted,  but  not  land  directed  to  be  sold,  984. 
presumed  to  include  only  land  owned  by  the  testator,  and  raises  no 

case  for  an  election,  1011,  1012,  1040. 
passes  estate  which  the  devisor  holds  as  a  trustee,  1127,  1128. 
operative  to  execute  a  power  of  appointment,  1168,  1169. 
may  execute  power  without  referring  to  it,  1169. 

may  execute  a  power  created  after  the  making  of  the  will,  1170,  1171. 
(see  Powers.) 

GENERAL  GUARDIAN  — 

must  be  appointed  for  infant  legatee,  104,  581, 

GENERAL  LEGACIES  — 
abatement  of,  535-540. 
when  charged  on  land,  541. 
charged  by  blending  of  assets,  542,  543. 
charged  by  direction  to  pay,  544,  545. 
charged  by  gift  of  land  "after  payment"  of,  547. 
for  support  charged  on  land,  547-549. 


INDEX.  144:1) 

References  are  to  pages. 

GENERAL  LEGACIES  (continued)  — 
personal  liability  of  devisee  for,  549. 
the  lien  of,  551. 

merger  of  a  charge  of,  551,  553. 

defined  and  distinguished  from  specific  legacies,  554, 
for  a  particular  purpose.  554. 
of  "  all  "  the  personal  property,  554. 
annuities  in  general  terms  are,  1078. 

GENERAL  OCCUPANT  — 

of  estate  per  autre  vie,  69. 

GENERAL  POWER  — 

defined,  1163. 

not  executed  in  equity,  1169,  1170. 

may  be  released  to  owner  of  estate,  1179. 

perpetuity  is  not  created  by,  unless  it  be  exercisable  by  will,  1183, 

(see  Powers  of  Appointment.) 

GESTATION  — 

court  will  take  notice  of  period  of,  748. 

GOOD  FAITH  — 

power  to  appoint  must  be  exercised  in,  1176-1178. 

GOOD  HABITS  — 

conditions  favoring  formation  of,  683,  684. 
what  are,  684. 

GOODS  (see  also  Chattels). 

GOVERNMENT  BONDS— 
trustee  may  invest  in,  1144. 
trustee  not  liable  for  loss  of  premium  on,  1146. 

GRANDCHILDREN  — 

included  in  gift  to  children,  711,  713. 

may  take  as  children  when  no  children  survive,  713. 

taking  by  substitution.  713. 

exercise  of  power  in  favor  of.  713. 

presumption  against  their  taking  as  children,  714,  715. 

does  not  include  great-grandchildren,  715. 

limitations  to,  may  be  void  for  remoteness,  1347,  1348,  1351,  1353. 

GRASS  — 

not  emblements,  413. 

GRATITUDE  — 

influence  of,  not  undue,  203,  204. 

GRATUITY  — 

expectation  of  receiving  is  not  devisable,  63,  73. 

GREAT-NEPHEWS  AND  GREAT-NIECES  (see  Nephews  and  Nieces). 

GROUND  RENT  — 

is  devisable,  66. 

carries  tin*  reversion,  951. 

wlien  redfeiiiahie  is  real  |)ropprty,  978.  n. 

not  converted  though  paid  olF  by  lessee,  978. 

GROWING  CROPS  — 

disposition  of,  as  between  the  executor  and  devisee,  411,  412. 

GL'ARDIAN  — 

nowcr  of,  to  change  doniifilo  of  minor,  43. 
legacy  to  infant  may  be  paid  to,  101,  581. 


1450  INDEX. 

References  are  to  pages. 

H. 

HABITUAL  DRUNKAHD  — 

capacity  of,  to  make  will,  153,  154. 
undue  influence  upon,  179. 
mode  of  proving  the  testator  is,  155. 
(see  Intoxication.) 

HANDWRITING  — 

holographic  will  must  be  in  testator's,  16. 
declarations  of  testator  in  case  of  holographic  will,  17. 
mode  of  proving,  when  forgery  is  alleged,  2\j'3,  334. 

HATRED  — 

is  not  a  delusion,  12G,  127. 

HEIR  — 

word  construed  by  law  of  testators  domicile,  83. 

expectation  of,  is  not  devisable,  61,  62.  n.,  63. 

when  he  takes  in  case  of  an  estate  per  autre  vie,  69. 

if  alien,  cannot  maintain  ejectment,  84. 

may  act  as  attesting  witness,  284,  285. 

is  a  proper  party  to  establish  lost  will,  373. 

favored  by  the  courts,  443. 

is  proper  party  to  action  to  construe,  610. 

presumption  against  disinheriting,  619. 

devise  for  life  by  implication  after  the  death  of  the,  619-621. 

resulting  trust  in  favor  of.  222-224,  627,  628,  988,  1113. 

of  testator,  may  enter  for  breach  of  condition,  638. 

his  ignorance  of  condition  is  excused,  651. 

adopted  child  as,  717,  718.  n. 

right  of,  to  call  for  exoneration  of  land  contracted  to  be  sold,  974-976. 

of  trustee,  cannot  execute  discretionary  power  in  trust,  1127,  1129. 

merger  of  legal  title  in  equitable.  1132. 

remainders  to,  are  contingent,  1291. 

remainders  to.  when  class  ascertained,  1292,  1293. 

validity  of  remainders  to,  1342-1344. 

of  trustee,  takes  trust  estate  subject  to  the  trust,  1126. 

need  not  elect  in  case  of  will  invalid  to  pass  land,  1017-1019,  1029, 1030. 

who  takes  against  will,  need  not  surrender  what  he  takes  indirectly, 
1021. 

right  to  elect  survives  to.  when  property  given  by  will  would  have  de- 
scended to  him,  1035,  1036. 

the  right  to  elect  does  not  survive  to  the  widow's  heir,  1034-1036. 

widow's  right  as,  not  barred  by  devise  in  lieu  of  dower,  1046,  1047. 

title  of,  substituted  by  statute  to  prevent  a  lapse,  454. 

HEIR  APPARENT  — 

may  be  meant  by  gift  to  "family,"  780. 

HEIRS  AS  A  WORD  OF  LIMITATION,  436,  445,  446. 
use  of,  does  not  prevent  lapse,  436,  446. 
effect  of  the  word,  used  in  a  lease  for  years,  67,  n. 
necessar}^  to  create  fee,  397. 
creates  an  absolute  interest  in  personalty,  446. 
creates  a  fee  simple  in  real  property,  446,  447. 
as  substitutional  words,  476-478. 

not  necessary  to  create  estate  in  fee  in  trust,  1112-1115. 
(see  Estates  in  Fee  Simple.) 

HEIRS  AS  PURCHASERS  — 

words  of  purchase  and  limitation  distinguished,  447,  810. 
take  interests  which  are  alienable,  810. 
who  may  take,  811. 


INDEX.  1451 

References  are  to  pages. 

HEIRS  AS  PURCHASERS  (continued)  — 
parol  evidence  to  vary  meaning  of.  812. 
take  land  devised  to  them  by  ancestor,  812,  814. 
period  class  of,  is  ascertainable  when  gift  vests  at  death  of  testator, 

814. 
ascertainment  of,  as  class  when  gift  in  remainder  follows  life  estate 

in  sole  heir,  814-816. 
heirs  apparent  meant  by  gift  to  heirs  of  a  living  person,  817-819. 
described  as  of  a  particular  name,  899. 
devise  to  "'heir  "  in  the  singular,  820. 
devises  to  "right  heirs,"  820,  821. 
when  equivalent  to  children,  822,  823. 
when  equivalent  to  children  in  devise  over  on  "  death  without  heirs," 

824,  825. 
"  heirs "'  may  mean  devisees  or  legatees,  825,  826. 

the  word  "heirs"  in  a  gift  of  personalty  means  next  of  kin,  826-829. 
bequests  of  personal  property  to  heirs  as  persona  designata,  829,  830. 
personal  and  real  property  blended  in  gift  to  heirs,  880. 
when  husband  or  wife  is  an  heir.  831,  832. 
when  they  take  per  stirpes  or  j)er  cax>ita,  832-835. 
statutes  regulating  laws  of  descent,  834. 
personal  representatives  means,  in  gifts  of  lands.  852. 
rule  in  Slielly's  case  does  not  apply  to,  891,  894,  895.  897-902. 
equalit}'  of  division  among,  may  indicate  the  words  are  synonymous 

with  children,  891,  «92. 

HEIRS  GENERAL  — 

limitation  to,  coming  after  remainder  to  the  heirs  of  the  bodj^,  887, 
888. 

HEIRS  MALE  — 

equivalent  to  children,  886. 

HEIRS  OF  THE  BODY  — 

technical  words  to  create  fee  tail,  861. 

presumption  that  thej'  are  words  of  limitation,  870. 

when  words  of  purchase,  870-873. 

meaning  of,  controlled  by  direction  that  they  shall  take  equally  as 

tenants  in  common.  872,  873. 
issue  synonymous  with,  and  a  word  of  limitation,  909-914. 
create  a  fee  conditional  in  an  annuity,  1081. 
(see  Estates  in  Fee  Tail.) 

HEREDITARY  INSANITY  — 
relevancy  of,  144. 

HOLOGRAPHIC  WILLS  — 
in  Louisiana,  244. 
date  of,  247. 
signed  at  end,  252. 
statutory  rcMjuirements  of,  15. 
attestation,  16. 
use  of  iirintfMl  form,  16. 
disguising  the  hand,  16. 
must  be  Kubscribed.  16. 

when  deposited  among  pajicrs  of  the  deceased,  16. 
proof  of  testator's  liamlwriling,  17. 
iric()ri)oratif)n  of  n<)iiliolograi)hic  papers,  17. 
form  lA  Ictti-rs,  17,  51. 
declarations  of  testator  to  prove  haiulwritiiig,  17. 

HOME  - 

direction  to  provide.  429. 

may  include  nursing  and  mcdiral  alhiilaMci',  129. 


1452  INDEX. 

References  are  to  pages. 

HOME  PLACE  — 
defined,  409. 

HOMESTEAD  — 
defined,  408. 

maj'  take  in  barns,  outbuildings,  etc.,  408. 
not  synonymous  with  farm,  409. 
parol  evidence  to  show  meaninjjj  of,  409.  1401. 
bequest  to  care  for,  not  valid  as  charity,  1196. 
inures  to  heirs,  lOoG. 
devise  of,  may  call  for  an  election,  1056,  1057. 

HOMESTEAD  PRIVILEGE  — 
may  be  devised,  74. 

HORSES  — 

pass  under  a  devise  of  chattels,  418. 

HOSPITAL  — 

bequests  for,  are  valid  as  charitable  bequests,  1212. 

HOSPITALITY  — 

bequest  for,  is  not  valid  as  a  charity,  1196. 

HOSTILE  WITNESS  — 

when  attesting,  he  may  be  impeached,  292. 
mode  of  impeachment,  276,  292,  293. 

HOUSE  — 

defined,  403,  405. 

includes  what  is  in  curtilage,  405. 

may  include  land,  gardens,  orchards,  barns,  lawns,  etc.,  403,  405,  406. 

fixtures  go  with,  to  devisee.  406. 

described  by  occupation,  409-411. 

parol  evidence  to  explain,  1401. 

HOUSEHOLD  FURNITURE  — 

passes  under  bequest  of  personal  property  or  effects,  415,  418,  419. 
passes  under  bequest  of  money,  420. 
described  by  its  location,  427. 

includes  everything  which  furnishes  a  house,  423,  424. 
does  not  include  a  stock  in  trade,  jewelry,  ornaments,  tricvcle  or  live- 
stock, 424. 
specific  legacy  of,  pledged,  538. 
ademption  of  legacy  of,  by  removal,  562. 
delivery  of  key  may  show  gift  of,  1070,  n. 

HOUSEHOLD  SERVANTS  — 
gifts  to,  806,  807. 

HUSBAND  — 

consent  of,  to  wife's  will,  173,  174. 

undue  influence  exerted  by  wife  upon,  211,  212. 

of  legatee,  competency  of,  as  attesting  witness,  283. 

of  legatee,  does  not  take  lapsed  legacy  as  a  relative,  453. 

reference  to  man  who  is  not  legally  such,  760,  801. 

children  of  a  woman  by  husband  named,  719. 

gift  to,  in  satisfaction  of  legacy  to  wife,  594. 

"death  unmarried  "  may  mean  not  leaving  a,  634. 

included  in  gift  to  family,  782. 

included  in  gift  to  relations,  785-787. 

nephews  and  nieces  of,  793,  794. 

evidence  not  received  to  show  he  is  an  heir,  812. 

curtesy  of,  in  money  converted,  985,  986. 

need  not  elect  in  case  of  invalid  will  of  wife,  1019. 

as  executor  of  wife's  will  is  not  an  election,  1025. 


iXDEX.  1453 

References  are  to  pages. 

HUSBAND  (continued)  — 

has  no  control  over  a  separate  use  trust,  1100-1103. 
right  to  control  community  property,  10o5. 
right  to,  in  estate  by  the  curtesy,  1060-1063. 

HUSBAND  AND  WIFE  — 
mutual  wills  by,  19,  20. 
devise  to,  creates  estate  by  entirety,  707. 
neither  can  incumber  estate  by  entirety,  707. 
survivorship  between,  708. 
as  tenants  in  common,  709,  710. 
as  joint  tenants,  709. 

effect  of  statutes  abolishing  joint  tenancy  upon  devises  to,  709. 
effect  of  statutes  regulating  the  property  rights  of  the  wife,  710. 
presumed  to  mean  those  lawfully  such,  801. 

gift  to,  not  affected  by  fact  that  the  marriage  is  illegal,  760,  801. 
woman  not  lawful  wife  may  take  as  widow,  803. 
legacy  procured  by  deception  as  to  relations  between,  803. 
from  what  time  will  speaks  as  to  devise  to  either,  803-805. 
are  not  heii's  of  one  another,  831. 

but  may  be  included  as  an  heir  by  special  words,  831. 
provision  for  widow  in  lieu  of  dower  excludes  her  from  gift  to  heirs, 

833. 
estates  in  special  fee  tail  created  by  limitations  to  heirs  of  the  body  of, 

864. 
(see  Widow;  Election.) 

HYPOTHETICAL  QUESTIONS  — 

on  mental  condition  of  the  testator,  138. 


I. 

IDENTIFICATION  — 

of  writing  referred  to,  380. 

IDIOTS  — 

testamentary  capacity  of,  158. 
transaction  of  ordinary  business,  159. 

IGNORANCE  — 

does  not  destroy  capacity,  158,  159. 

of  condition,  does  not  excuse  non-performance,  650. 

ILLEGALITY  — 

of  conditions,  646-648. 

of  conditions  promoting  separation  of  husband  and  wife,  681,  683. 

ILLEGITIMATE  CHILDREN- 

legitimate  children  presumed  to  be  meant  by  "children,"  753,  753. 

may  take  when  no  otiiers,  753. 

intention  to  benefit,  must  plainly  appear,  754. 

knowledge  of  the  testator  that  there  are,  754-750,  759,  760. 

parol  evidence  that  testator  meant,  to  take  as  children,  755,  750. 

may  take  when  named,  757,758. 

recognition  of,  by  testator,  75!t,  761. 

when  they  may  take  with  legitimate  children  as  a  class,  702. 

gifts  to,  when  unborn.  763,  764. 

gifts  to,  en  ventre  «a  mere,  765,  767. 

effect  of  the  legitimation  of,  767,  768. 

may  take  as  descendants,  453. 

designated  as  such,  may  take,  752,  757. 

of  bnjllier,  do  not  take  as  nr'[)hews  and  nieces,  700. 

gifts  to  illegitimule  daughters,  799. 


1454  IXDKX. 

References  are  to  pages. 

ILLITERACY  — 

to  show  testamentary  incapacity,  166-170. 
of  an  attesting  witness,  272,  273. 

ILLNESS  OF  TESTATOR  — 

affording  opportunity  for  fraud,  198. 

not  evidence  of  incapacity,  198,  199. 

may  prevent  completion  of  destruction,  306. 

ILLUSORY  APPOINTMENTS  — 

may  be  set  aside  in  equity,  1178-1180. 

IMBECILES  — 

capacity  of,  to  make  will,  153. 

IMMEDIATE  GIFTS  — 

vest  at  death  of  testator,  731,  722. 

IMPEACHMENT  — 

of  attesting  witness,  291. 

by  proponent  in  case  of  hostile  attesting  witness,  292. 

by  bad  reputation  for  veracity.  292. 

by  extra-judicial  declarations,  293. 

IMPLICATION  — 

that  debts  are  charged  upon  land,  517. 

must  be  of  necessity,  615-617,  935. 

introductory  clause  in  connection  with,  017. 

estate  in  fee  simple  by.  618,  619. 

estate  by,  where  land  is  devised  after  death,  619-621. 

estate  by,  on  attainment  of  majority,  621,  622. 

no  estate  by,  on  death  without  children,  622,  623. 

arising  from  non-execution  of  power,  623,  624. 

cross-remainders  for  life  by,  624,  1281,  1284. 

estate  tail  by,  024,  625,  867,  868. 

remainders  by,  after  remarriage  of  widow,  625. 

resulting  trusts  for  the  heirs,  625,  626. 

on  failure  of  devise  for  a  particular  purpose,  627. 

from  false  or  erroneous  recitals,  628-633. 

in  construction  of  the  word  "  unmarried,"  633.  634 

estate  tail  by,  on  indefinite  failure  of  issue,  867,  868. 

none  by,  on  a  definite  failure  of  issue,  869. 

estate  tail  by,  on  death  without  children,  869. 

fee  by,  on  death  under  majority,  947. 

to  raise  case  of  election,  must  be  clear,  1012. 

trust  may  be  created  by,  1111,  1112. 

interest  in  trustee  may  be  enlarged  by,  1112. 

power  of  sale  by,  1116-1118. 

cross-remainders  by,  on  a  definite  failure  of  issue,  1281-1284 

IMPLIED  REVOCATION  — 

parol  evidence  to  rebut  presumption  of,  333. 

defined,  302,  303. 

from  disappearance  of  will,  303. 

none  from  placing  will  among  waste  papers,  319. 

of  woman's  will  by  marriage,  321,  322. 

from  marriage  of  man,  323,  32.5. 

from  marriage  and  birth  of  children.  .325-335. 

none  from  mere  change  in  circumstances,  335. 

from  inconsistent  disposition  of  property,  341-344. 

of  codicil  from  revocation  of  will,  352. 

of  duplicate  wills,  356. 

none  from  insanity  of  the  testator,  358. 

none  from  adoption  of  a  child,  359,  360. 

none  from  divorce,  300. 


IXDEX.  1455 

References  are  to  pages. 

IMPORTUNITY  — 

is  not  undue  influence,  205,  206. 

IMPOSSIBILITY— 

of  performing  conditions,  646-64§,  651. 

"IN  CASE  OF  DEATH"  — 

construed,  simpliciter,  457-459. 

before  receiving  legacy,  459-461. 

before  a  legacy  is  •'  due  or  paj^able."  461,  462. 

with  a  contingency,  as  under  majority  or  without  issue,  462-468. 

INCOME  — 

legacy  payable  out  of,  is  a  charge,  544-546. 

how  apportioned  between  life  tenant  and  remainderman,  581,  586. 

gift  of,  carries  title  to  fund,  949-951. 

liability  of  trustee  for  loss  of,  1143-1149. 

gift  of,  with  gift  of  capital  on  majority,  1336. 

bequest  of,  showing  intent  to  vest  legacy  payable  at  majority,  1823-1326. 

validity  of  the  accumulation  of,  1377-1884. 

INCOMPETENT  PERSON  — 

paj-ment  of  legacy  to,  580,  581. 

election  for,  must  be  made  by  court,  1026-1028. 

INCOMPLETE  DESTRUCTION  — 
effect  of,  as  revocation,  309-311. 

INCORPORATION  OF  WRITINGS  — 
based  on  fiction  of  law,  379. 
by  reference  to  a  map  of  property,  379. 
in  case  of  a  codicil,  379. 

existence  and  identity  of  writing  incorporated,  380. 
will  must  refer  to  writings  as  in  existence,  380,  381. 
language  of  the  reference,  381. 
probate  of  writing  incorporated,  382,  383. 
when  will  consists  of  several  sheets,  384. 
blank  spaces  in  writings  not  material  to,  384. 
separate  wills  of  property  by  one  testator,  384. 
home  probate  of  foreign  wills,  384. 
not  applicable  to  writings  not  in  existence,  337. 
rule  in  Shelly"s  case,  881. 
by  reference  to,  in  holographic  will,  17. 

INDEFINITE  FAILURE  OF  ISSUE  — 

where  there  is  a  power  to  appoint  among  issue,  916. 

estate  tail  by  implication,  621-624,  867-869. 

(see  also  Failure  of  Issue;  Death  Without  Issue.) 

INDEFINITENESS  — 

in  charitable  gifts,  1186. 

in  relation  to  charities,  classified  and  defined,  1232, 

of  charitable  gift  as  to  beneliciaries,  1233,  1234,  1235,  n. 

caused  by  neglect  to  appoint  a  trustee,  1236,  1238. 

arising  from  gifts  to  unincorporated  institutions,  1237-1240. 

arising  from  misnomer  of  institution,  1243-1245. 

where  a  trustee  is  a[)pointed  with  power  and  discretion  to  select,  1246- 

1252. 
doctrine  of  cy  pres  applied  to,  1226. 
(see  also  Uncektainty.) 

INDP:TKRM1NATE  LAN(JUA(iE  — 

remainder  to  issue  in,  916.  ^ 

INDIVIDUALS  — 

gifts  to,  distinguished  from  class  gifts,  721. 


1456  INDEX. 

References  are  to  pages. 

INDUSTRY  —  ' 

condition  favoring  habits  of,  683,  C84. 

INFANTS  — 

may  be  appointed  executors,  11. 
capacity  of,  to  take  under  will,  104,  580. 
testamentary  capacity  of,  at  common  law,  170. 

at  civil  law,  170. 

by  statute,  171. 
may  appoint  testamentary  guardians,  171. 
conversion  of  land  of,  by  court  order,  980. 
may  dispose  of  land  converted,  982,  984. 
conversion  when  land  of,  is  sold  in  partition,  983. 
cannot  elect  to  take  property  unconverted,  993. 
no  election  arises  in  case  of  will  of,  not  valid  to  pass  lands,  1018. 
an  election  for,  must  be  made  by  the  court,  1037. 
cannot  be  donee  of  a  power,  1180. 
(see  Majority.) 

INFLUENCE  (see  Undue  Intluence). 

INHABITANT  — 

of  town  as  attesting  witness,  285. 

INHERITANCE  — 

words  of,  added  to  devise  to  heirs  of  the  body,  874. 
effect  of  words  of,  when  added  to  remainder  to  issue,  912. 
necessity  for  words  of,  to  confer  fee  simple,  929-981,  935,  951-953. 
words  of,  not  necessary  to  create  a  perpetual  annuity,  1083. 
(see  Heirs  as  a  Word  of  Limitation.) 

INJUNCTION  — 

to  restrain  improper  execution  of  power  of  sale,  1176,  n. 

INK  — 

should  be  used  for  a  will,  247. 

INSANITY  — 

characteristics  of,  116. 
measure  and  test  of,  117. 
inferred  from  sudden  change  in  habits,  118. 
delusions,  118,  119. 

eccentricity  distinguished  from,  120,  121,  123. 
must  influence  the  will,  125,  126. 
mistake  and  prejudice  are  not,  126,  127. 
jealousy  and  suspicion  are  not,  127,  128. 
belief  in  spiritualism  is  not,  128-130. 
lucid  interval  defined,  131-138,  307. 
physician  may  testify  to,  139. 
attesting  witness  may  testify  to,  140. 
non-expert  witness  may  testify  to,  141. 
intimate  acquaintance  may  testify  to,  142. 
range  of  evidence  to  show,  144. 
declarations  to  show,  149. 
drunkenness  as  evidence  of,  150. 
suicide  as  evidence  of,  150.  151. 

revocation  not  presumed  from,  358.  ^ 

destruction  of  will  during  lucid  interval,  307. 

ademption  by  change  in  character  of  property  of  person  suffering 
from,  562. 

INSOLVENCY  — 

conditions  directing  forfeiture  upon,  690. 

repugnancy  of  conditions  against,  091. 

estates  until.  692. 

spendthrift  trusts.  693-695. 

effect  on  legacy  of  annulment  of,  695. 


INDEX.  ^  1457 

References  are  to  pages. 

INSTITUTION  — 

contract  to  make  will  in  favor  of,  393. 

INSURANCE  MONEY  — 

right  and  obligation  to  elect  between,  and  a  devise,  1058,  1059. 
no  election  when  right  to,  is  revocable  and  not  vested,  1059. 
may  be  devised,  70-73. 
holder  of  option  may  claim,  978,  n. 

INTENTION  OF  TESTATOR  — 

to  make  will  not  disposing  of  property,  10. 

to  appoint  executor,  11,  n. 

to  make  a  contingent  will,  12. 

to  make  will  speak  from  date  of  execution,  21, 

to  change  domicile.  39,  40. 

that  an  informal  writing  shall  be  a  will.  46. 

that  a  legacy  of  a  debt  shall  carry  the  right  to  sue,  G6. 

as  determining  the  character  of  the  instrument,  47,  48. 

to  pass  after-acquired  lands,  77. 

to  make  oral  will,  240. 

to  revoke,  when  prevented  by  legatee,  306. 

to  revoke,  must  be  present  in  act  of  destruction,  303-306,  308,  313,  314 

to  omit  children  from  will,  332-334. 

to  revoke,  in  case  of  duplicate  wills,  356. 

to  prevent  the  lapsing  of  a  legacy,  444. 

to  exonerate  personal  property,  510-524. 

to  cause  ademption,  562. 

to  give  cumulative  legacies,  572. 

from  implication.  614-634. 

from  whole  will,  617. 

from  erroneous  recitals,  629-632. 

modifving  the  application  of  the  rule  in  Shelly's  case,  883-886,  903, 

903,  n. 
to  convert,  957. 
the  doctrine  of  cy  pres  applied  to,  1224-1226. 

INTEREST  — 

payable  on  general  legacies,  575. 
at  wliat  rate  calculated,  576. 
more  than  simple,  ought  to  be  paid,  576. 

payable  from  date  of  testator's  death  and  from  grant  of  letters  to  ex- 
ecutor. 574,  577. 
payable  by  administrator  c.  t  a.,  577. 
none  on  advancements,  577. 
on  legacies  ciiarged  upon  land,  577. 
on  legacies  given  in  lieu  of  dower  for  support,  578,  579. 
upon  annuities,  1089. 
legacy  of,  is  demonstrative,  556. 

"  INTERESTED  WITNESSES  "— 
defined,  284,  285,  293,  294. 

INTERLINEATIONS  — 

whether  final  or  deliberative,  311,  312. 

IN  TERROREM  — 

applied  to  conditions  restraining  litigation,  673. 

applied  to  conditions,  it  recjuires  a  gift  over,  656,  657. 

INTERSTATE  LAW  (seo  Foukiun  Law), 

INTESTACY  — 

next  of  kin  in.  839,  840. 

INTOXICATION  — 

testator  addicted  to  habits  of,  150. 
bearing  u|)on  undui.'  iiiIIiicik-c.  15i),  151,  200. 
producing  ilcluima  lixincns,  152,  153. 

92 


1458  INDEX. 

References  are  to  pages. 

INTOXICATION  (continued)  — 

resulting;  in  permanent  insanity.  152-156. 
presumption  of  continuance  of,  154. 
introducing  evidence  of,  155,  156. 
condition  to  refrain  from,  684. 
(see  Habitual  Drunkenness.) 

INTRODUCTORY  CLAUSE  — 
expressive  of  intention,  617. 

does  not  alone  enlarge  devise  in  vague  terms,  931. 
raises  presumption  that  fee  is  given  by  indeterminate  language,  397, 
933. 

INVALID  CONVEYANCE  — 
revocation  by,  348,  349. 

INVALID  WILL  — 

heir  need  not  elect  in  case  of,  1017-102(i 

INVESTMENT  — 

liability  of  trustee  for,  1143-1147. 

of  general  legacy  directed,  is  not  mandatory,  574 

ISSUE- 
RS a  word  of  substitution.  454,  476-478. 
fee  tail  created  by  limitation  to,  862. 
death  "  without "  and  "  unmarried,"  633,  634» 
when  included  in  gift  to  children,  713,  713. 
adopted  child  as,  717. 
child  en  ventre  regarded  as,  747,  748. 

presumption  that  legitimate  issue  are  meant,  752,  757,  n. 
whether  a  word  of  purchase  or  of  limitation,  909,  910. 
primary  meaning  of,  is  heirs  of  the  body,  909,  910,  918. 
estate  tail  by  devise  to  "A.  and  his  issue,"  863,  910. 
rule  in  Wild's  case  not  applicable  to  devise  to,  911. 
devise  to  A.  and  his  issue  "  living  at  his  death,"  911. 
the  addition  of  words  of  inheritance  to  remainder,  913,  913. 
limitation  to  "heirs"  or  "assigns"  of  the  issue,  911. 
the  word  is  equivalent  to  eldest  son,  913. 
added  words  directing  equal  division  among,  913. 
remainder  to,  as  tenants  in  common,  913.  914. 
rule  in  Shelly's  case  applied  to  remainder  to,  914,J918. 
power  of  appointment  among,  890,  891,  n.,  916,  1176. 
death  without  issue,  when  coupled  with  power  to  appoint  among,  916.. 
remainder  to,  in  indeterminate  language,  916. 
definition  of,  as  a  word  of  purchase,  918. 
will  not  be  restricted  to  children,  909,  918. 

the  word  used  in  its  restricted  meaning  of  children,  920-933,  933,  n. 
mode  of  distribution  among,  as  purchasers,  924,  935. 
(see  Failure  of  Issue;  Power  of  Appointment.) 

ISSUE,  DEATH  WITHOUT  — 

when  meaning  death  in  the  life  of  the  testator,  463,  466-468. 
before  termination  of  prior  estate,  464. 
during  minority,  464. 
(see  Failure  of  Issue.) 

ITEM  — 

defined,  433-434 

J. 

JEALOUSY  — 

is  not  delusion,  127,  128. 

JEWELRY  — 

does  not  pass  under  bequest  of  "  furniture,"  424 
passes  under  bequest  of  •'ornaments,"  413. 
ademption  of  legacy  of,  by  removal,  562. 


INDEX.  1459 

References  are  to  pages. 

JOINT  TENANCY  — 

power  to  devise  estates  in,  63,  64. 

legacies  in,  do  not  lapse,  437,  438. 

cross-remainders  by  implication,  624. 

distinguished  from  tenancy  in  common,  699. 

unities  in,  699. 

survivorship,  700. 

created  at  common  lavi',  700. 

presumption  in  favor  of,  701,  703. 

in  chattels,  701. 

not  created  by  words  of  severance  or  equal  division,  701-703. 

estates  in,  not  favored  by  law,  703. 

in  case  of  an  estate  tail,  703. 

in  gifts  to  classes,  704. 

in  remainders  to  children,  704,  773,  773. 

statutes  raising  presumption  against,  705. 

constitutionality  of  statutes  abolishing,  700. 

words  necessary  to  create  under  statute,  706. 

by  devise  to  A.  and  his  children  under  rule  in  Wild's  case,  773,  773. 

by  gift  to  several  as  next  of  kin  if  in  equal  degrees,  837,  838. 

issue  take  a  remainder  in,  when  purcliasers,  918. 

election  when  testator  holds  pi'operty  in,  1009-1011. 

JOINT  WILLS  — 
validity  of,  18. 
probate  of,  19. 
revocation  of,  19-31. 

JOURNEY  — 

contingent  wills  in  contemplation  of,  13-14. 

JUDGMENT  — 

lien  of,  on  legacy,  605. 

in  an  action  to  construe  will,  613. 

against  trustee  binds  cestui  que  trust,  1133. 

nray  pass  under  a  bequest  of  money,  420. 

not  under  bequest  of  movables,  419. 

JUDICIAL  NOTICE  — 

none  of  foreign  laws.  35,  36. 

JURISDICTION  — 

of  equity  and  probate  courts  over  lost  wills,  869,  370. 
of  probate  court  to  construe  will,  613, 
(see  also  Equity.) 

K. 

KEY  — 

delivery  of,  as  evidence  of  a  gift  causa  mortis,  1069, 

KINDNESS  — 

inlluence  of,  is  not  undue,  203,  304. 

L. 

LAND  — 

conversion  of,  by  direction  for  sale,  955-998. 
passe.s  under  a  devi.se  of  prf^jxTly,  -lOO. 
included  in  d«;vis(,'  of  cstati',  397,  ;!9M. 
in  not  a|)|iiirtf'ti;int  to  land,  401,  105. 
devise  ot,  iiiclmlcs  tilings  appurtenant,  "104^ 
amount  of,  included  bv  devist*  (if  farm,  107. 
when  devise  of,  is  void  for  uncertainly,  1380-1389. 


1400  INDEX. 

References  are  to  pages. 

LAND  REFORM  — 

gifts  by  will  to  advance,  1215. 

LANGUAGE  — 

parol  evidence  to  explain  meaning,  1406-1411. 
(see  Uncertainty;  Foreign  Language.) 

LAPSE  — 

defined,  358,  436. 

not  prevented  by  use  of  words  of  succession  or  representation,  436, 

445,  446,  849,  850.  852. 
in  case  of  legacy  to  tenants  in  common,  437,  438. 
in  case  of  legacy  to  joint  tenants,  4:57,  438. 
in  legacies  and  devises  to  classes,  439,  441,  797. 
in  legacies  to  executors,  440,  441. 
when  legatee  is  dead  at  date  of  the  will,  440,  455. 
none  by  statute  when  legatee  leaves  surviving  descendants  or  where 

legatee  is  a  relative  of  the  testator,  440,  453. 
postponement  of  payment  does  not  cause,  442. 
of  legacies  to  creditors,  443. 
of  legacies  to  debtors,  443. 

intention  to  prevent,  must  plainly  appear.  444. 
words  of  limitation  do  not  prevent,  446,  447. 
death  under  majority  and  without  issue,  447,  448. 
substitution  of  "and  "  for  "or,"  448.  ' 

vesting  of  legacy  may  prevent.  449. 
statutory  regulation  of.  440,  452-455. 

none  by  statute  when  legatee  leaves  descendants,  440,  453. 
none  when  legatee  is  relative  of  the  testator,  440,  453. 
residuary  clause  takes  in  legacies  and  devises  failing  by,  449-451. 
when  in  tlie  residuary  disposition,  testator  is  intestate,  451,  452. 
title  of  substituted  heirs  or  issue  under  statute,  454. 
the  words  •'  personal  representatives  "  to  prevent,  436,  849,  850,  852. 
future  estate  accelerated  by,  1334. 
of  charitable  gift  by  dissolution  of  institution.  1254. 
(see  also  Survivorship;    Death   of  Beneficiary;    Substitutional 

Gifts.) 

LAST  SICKNESS  — 

nuncupative  will  executed  in,  238. 

LAST  WILL  — 

presumption  of  revocation  from  use  of,  851. 
which  is,  where  several  of  same  or  no  date,  351. 
does  not  of  necessity  revoke  those  preceding,  341. 

LAW  OF  FOREIGN  COUNTRY  (see  Foreign  Law). 

LEAD  PENCIL  (see  Pencil). 

X,EASES  — 

are  chattels  real  and  pass  to  executor,  66. 

devisee  takes  subject  to,  567. 

statute  of  uses  not  applicable  to,  1096. 

options  to  purchase  attached  to,  977,  n. 

power  of  sale  does  not  imi^ly  power  to  grant,  1119. 

LEAVING  ISSUE  — 

construed  having  issue  in  a  bequest  of  an  annuity,  1082. 
equivalent  to  having  had  issue,  745,  746,  n. 

LEGACIES  — 

construed  by  law  of  testator's  domicile.  30. 

defined  and  distinguished  from  devises,  430. 

may  refer  to  gift  of  land,  430. 

ademption  of,  561,  565. 

■cumulative  and  substitutional,  568-574 


ixDEx.  i4or 

References  are  to  pages. 

LEGACIES  (continued)  —  ' 

presumption  in  case  of  repetition,  569-573.  < 

to  executors  and  servants,  573. 
interest  on,  57-4-577. 
currency  paj'able  in,  578-580. 
to  incompetent  person,  580,  5S1. 
apportionment  of  income  of,  581-586. 
due  at  expiration  of  year,  573,  578. 
right  to  sue  for,  574. 

limitation  of  and  presumption  of  payment,  575. 
satisfaction  of,  589-607. 
direction  to  pay  as  a  charge,  618. 

false  statement  that  one  has  been  bequeathed,  639,  630. 
not  revoked  by  false  recital,  631. 

amount  of,  incorrect  description  may  be  corrected,  631,  633. 
jurisdiction  of  ecclesiastical  courts  over,  648. 
illegal  and  impossible  conditions  attached  to,  648. 
tenancy  in  common  in,  700-703. 

defined  and  distinguished  from  donations  causa  mortis,  1065. 
ambulatory  character  of,  lOGO. 
include  annuities,  1078,  1079. 

by  implication  from  words  of  payment,  1307-1311, 
payable  at  majority,  1315-1335. 

LEGAL  REPRESEXTATIVES  (see  Personal  Represextatives). 

LEGATEE  — 

may  be  equivalent  to  devisee.  430. 

meant  by  reference  to  heir  before  mentioned,  835,  836. 

for  uncertainty  of,  1389,  1390. 

competency  of  as  witness,  394 

LEGISLATIVE  CONTROL  — 

of  the  testamentary  power,  33-36. 

LEGITIMACY  — 

presumption  of,  749. 

cogent  evidence  required  to  overcome  presumption  of,  749. 

proof  of  access  conclusive  of.  750. 

evidence  of  non-access  of  husband,  750. 

incompetency  of  husband  and  wife  to  testify  to  non-access,  750. 

absence  of  husband  may  he  proved  to  show,  751. 

declarations  of  husband  or  wife  to  prove.  751. 

mode  of  treatment  by  fatlier  relevant  to  prove,  751. 

LEGITIMATION  — 

decree  of,  its  effect,  767,  768. 

LETTER  — 

may  be  a  liolographic  will,  17,  51,  53. 
incorporated  by  reference,  381. 

LEX  DOMICILII  — 

applie<I  to  legacies,  30. 

appli'-d  to  wills  executing  powers,  33. 

applied  to  words  describing  persons,  33. 

LEX  LOCI  — 

applied  to  devises,  39. 

LIBRARY  — 

be(iuest  to,  is  void  if  it  is  private.  119r). 

is  a  i»ublic  charity  tliough  its  use  is  limited  to  a  class  of  tlio  public,  1196. 

maintained  by  a  iSiinday  srhool  is  a  public  cliarity,  1190. 

bequest  to  city  tu  iiiuinliiin,  99,  100. 


1462  INDEX. 

References  are  to  pages. 

LICENSE  — 

devisee  takes  the  land  subject  to,  567. 
of  court,  not  necessary  to  exercise  of  power  of  sale,  1120. 
may  be  required  when  execution  of  power  in  a  particular  manner  is 
required,  1131. 

LIEN  — 

of  charged  legacy,  551. 
enforcement  of,  by  sale  of  land,  549. 
dower  regarded  in  the  nature  of  a,  1050. 

LIFE  ESTATE  — 

by  implication,  by  devise  to  A.  after  death  of  B.,  619-621. 

by  implication,  on  majority,  622,  947. 

not  enlarged  by  implication  on  devise  over  in  case  of  death  without 

children,  623,  624. 
during  widowhood,  663-667. 
remainder  to  cliildren  after,  732-734. 

enlarged  to  fee  tail  by  indefinite  failure  of  issue,  868,  869. 
fee  tail  turned  into,  with  contingent  remainder  to  cliildren,  876. 
and  remainder  to  heirs,  rule  in  Shelly's  case,  878-908. 
remainder  to  issue,  909-924. 
by  devise  in  indeterminate  terms,  929,  930. 
not  created  by  devise  of  "estate,"  930. 
clause  of  introduction.  931,  932. 

if  expressly  devised,  not 'enlarged  by  devise  of  estate.  934,  935. 
not  enlarged  by  direction  to  pay  debts  and  legacies,  936-938. 
with  power  of  sale  for  support.  940-943. 
with  power  of  disposal  by  will,  944,  945. 

estate  in  fee  not  cut  down  to,  by  devise  of  "  what  remains,"  945,  946. 
in  consumable  articles,  948. 

enlarged  to  fee  by  devise  over  on  death  under  age,  947. 
in  land  bv  gift  of  rents  and  profits,  949. 
sale  of  land  at  the  end  of,  966,  967. 

election  of  owner  of,  does  not  bind  remainderman,  1034. 
gift  of,  does  not  raise  case  of  election,  unless  expressly  in  lieu  of  dower, 

1049. 
in  an  annuity  by  indeterminate  language,  1080. 
in  trust  not  enlarged  by  implication,  1113,  1114,  n. 
to  terminate  upon  marriage,  1293,  1294. 
remainder  on  death  of  tenant  without  children,  1295. 
operation  of,  when  power  of  disposal  is  attached,  1313-1315. 
apportionment  of  income.  581-586. 
residue  given  as,  and  no  conversion  directed,  583,  583. 
right  of,  to  enjoy  in  specie.  585,  586. 
right  to  premiums  and  bonds.  586. 
deductions  from  income  of,  587. 
security  to  be  demanded  from  tenant  of,  588. 

LIKEWISE  — 

defined,  432-434. 

LIMITATION  — 

effect  of  words  of,  in  preventing  lapse,  445-447. 

children  as  a  word  of,  under  Wild's  case,  769-772. 

words  of,  added  to  a  gift  to  heirs  of  the  body,  874. 

"issue"  as  a  word  of,  909-917. 

"  heir  "  as  word  of.  under  rule  in  Shelly's  case,  878-908. 

"  heirs  of  the  body  "  as  words  of,  860-872. 

(see  Purchase.) 

LIMITATION,  ESTATE  UPON  — 

distinguished  from  conditions.  638. 

determines  without  re-entry,  639. 

character  of  conditional  limitation  coming  after,  639. 


INDEX.  IttGS 

References  are  to  pages. 

LIMITATION,  ESTATE  UPON  (continued)  — 
proper  language  to  create,  641. 
until  remarriage.  663. 

to  widow  of  testator  until  remarriage,  664,  665. 
validity  of,  when  given  in  lieu  of  dower,  666,  667. 

LITIGATION  — 

conditions  restraining,  not  in  contravention  of  public  policy,  672-675i 

LIVERY  OF  SEIZIN  — 

in  relation  to  early  wills,  6. 

LIVE  STOCK  — 

passes  by  bequest  of  movables,  428. 
defined,  425. 

LIVING  CHILDREN- 

means  living  at  testator's  death,  728. 

when  they  take  a  gift  in  remainder,  729. 

may  mean  those  who  survive  life  tenant,  729. 

gift  to,  when  contingent  on  surviving  life  tenant,  730. 

children  of  deceased  children  taking  by  substitution,  731. 

includes  child  en  ventre,  746. 

LOCATION  — 

of  property  as  an  element  in  its  description,  401,  933-934 
description  of  personal  property  by,  426-428,  557. 

LOSS  OF  SIGHT  AND  HEARING  — 

relevancy  of,  to  show  incapacity,  166-169. 

LOST  WILLS  — 

power  of  equity  to  establish,  370.  371. 

jurisdiction  of  probate  courts,  370. 

in  New  York  state,  370. 

search  for,  371,  372. 

when  actual  destruction  must  be  proved,  371. 

presumption  of  loss  from  non-discovery  of,  373. 

parties  to  suit  to  establish,  372,  373. 

competency  and  range  of  evidence  to  establish,  374. 

declarations  of  testator  to  prove  execution  and  contents,  372-375,  377. 

burden  of  proof  to  establish,  375,  376. 

sufficiency  of  evidence  of  single  witness,  376. 

separate  portion  of,  may  be  establislied.  378,  379. 

contents  of,  may  be  proved  by  parol,  308. 

revocatory  effect  of  clause  contained  in,  361. 

LUCID  INTERVAL- 

defined  and  distinguished  from  intermission  of  insanity,  131,  133. 

whetiier  possible  in  case  of  senile  dementia,  V6'Z. 

burden  of  proving,  133-135. 

in  case  of  delirium,  136. 

relevancy  of  evidence  to  show,  137. 

destruction  of  will  during,  may  be  a  revocation,  307. 

LUNATIC  — 

legacy  to,  may  be  paid  to  guardian.  580. 
election  for,  made  by  court,  992,  1027. 
(see  INSANITV;  Infant.) 

M. 

MAJORITY  — 

lajJKe  in  case  of  deatli  under,  1 1"),  117,  4  |H. 

death  without  issu..  and  wn<k'r,  4ls,  .'iOI.  1278.  1279. 

interchangeability  of  "and"  and  "or,"  418,  419,  503-505. 


1464:  INDEX. 

References  are  to  pages. 

MAJORITY  (continued)  — 

supplying  words  in  case  of  legacy  which  vests  at,  509. 

estates  by  implication  on,  021,  i)22. 

condition  reciuii'ing  consent  to  marriage  under,  660. 

postponement  of  marriage  until,  is  valid,  661,  662. 

conditions  requiring  attainment  of,  667,  668,  1318. 

suspension  of  alienation  until,  1864,  1365. 

when  class  to  take  ascertained  in  case  of  immediate  gift  on,  723. 

gift  payable  at,  following  life  estate,  723,  724. 

wdien  after-born  children  included,  724. 

attainment  of,  before  death  of  testator,  724. 

elTect  of  provision  for  support  and  maintenance  until,  724,  725. 

distribution  at  attainment  of  majority  of  youngest  child,  72"),  726. 

when  legacies  payable  at,  are  vested,  1315,  1316.     See  also  667,  668,  723, 

725. 
postponement  of  payment  of  legacy  for  convenience  of  estate,  1316. 
vested  legacies  payable  "when  "  or  "as  soon  as"  legatee  attains,  1317, 

1318. 
contingent  legacies  which  vest  at,  1318,  1319. 
effect  of  a  direction  to  pay  at,  without  words  of  gift,  1319,  1320. 
effect  of  a  limitation  over  on  death  under,  1321-1324. 
the  disposition  of  the  interim  income  during,  on  vesting  of  legacy, 

1323-1325. 
(see  Minority.) 

MALE  LINE  — 

next  of  kin  in,  840. 

MANIA  — 

lucid  interval  in,  132-137. 

MAP  — 

may  be  incorporated  by  reference,  379. 

MARK  — 

signature  of  the  testator  made  by,  254-256. 
signing  of  attesting  witness  by,  272. 
name  of  marksman  should  be  written,  273. 
may  be  made  for  witness,  273. 
no  particular  form  of,  is  required,  274. 

MARRIAGE  — 

revocation  of  woman's  will  presumed  from,  321-323. 

does  not  revoke  will  executed  under  a  power,  323. 

revocation  from,  and  birth  of  children,  325-330. 

of  man,  does  not  revoke  will  at  common  law,  325. 

revocation  of  mutual  wills  by,  21. 

relations  by,  do  not  take  under  gift  to  "  relations,"  785-787. 

children  by  former  marriage,  716. 

MARRIAGE,  CONDITIONS  IN  RESTRAINT  OF  — 

distinguished  from  estate  on  limitation  until  marriage,  663. 

of  the  widow  of  the  testator,  663,  664. 

the  estate  given  to  the  widow  of  the  testator,  666,  667. 

performance  of  excused,  when  illegal  or  impossible,  647,  655. 

jurisdiction  of  church  courts,  651,  652. 

the  application  of  the  Roman  civil  law  to,  651,  652,  n. 

attached  to  devises  of  land,  652. 

considerations  of  public  policy  supporting,  653.  654. 

as  related  to  the  widow  of  the  testator,  654,  663. 

valid  when  partial,  655. 

to  particular  person  or  among  specified  class,  655. 

consent  may  be  required,  655-657. 

the  discretion  of  trustee  to  give  or  withhold  consent,  658, 

consent  to  marriage  cannot  be  withdrawn,  658. 


INDEX.  1405 

References  are  to  pages. 

MARRIAGE.  CONDITIONS  IN  RESTRAINT  OF  (continued)  — 
presumption  that  consent  lias  been  given,  659. 
consent  need  not  be  in  writing,  659. 
when  consent  of  trustee  may  be  dispensed  with,  660. 
when  consent  of  majoritj'  is  sufficient,  G61,  662. 
necessity  for  gift  over,  66"3. 
character  of  gift  over,  662,  663. 
conditions  requiring  dissolution  of,  are  void,  681. 

MARRIAGE  SETTLEMENT  — 

rule  in  Shellj-'s  case  applied  to,  894.    . 
provisions  under,  when  satisfied,  600. 

MARRIED  WOMAN  — 

will  of,  under  power,  probate  of,  10. 

may  be  executrix,  11. 

domicile  of  husband,  42. 

power  of,  to  change  domicile  on  separation  or  divorce,  43,  43. 

may  bequeath  life  insurance  on  life  of  her  husband,  72,  73. 

testamentary-  incapacity  of,  at  common  law,  171. 

may  dispose  of  separate  property'  under  power.  172, 

consent  of  husband,  when  required  to  a  will  of,  173,  174. 

capacity  of,  to  take  under  will,  103. 

character  of  devise  to,  at  law  and  equity,  103. 

undue  influence  exerted  by,  211,  212. 

power  of,  to  revoke  will,  321. 

legacy  to,  whom  payable  to,  580. 

when  tenant  by  the  entirety,  707-711. 

land  devised  to,  when  converted  goes  to  her  husband,  983. 

no  election  in  case  of  will  of,  not  valid  to  pass  personal  property  not 

settled  to  her  own  use,  1018. 
election  for,  must  be  made  by  court,  1027. 
power  of,  to  dispose  of  separate  estate  by  will,  323,  1060-1063. 
may  be  the  donee  of  a  powei',  1180, 1181. 
active  trust  for.  Is  not  executed,  1100-1103. 
trust  estate  for,  extinguished  on  death  of  husband,  1103. 

MARSHALING  — 

order  of,  for  payment  of  debts,  515. 

primary  liability  of  personal  property,  515,  516. 

the  exoneration  of  personal  ])ro])erty,  516-523. 

debts  may  be  charged  on  land,  522,  523. 

direction  to  pay  debts  out  of  issues  of  land,  524. 

parol  evidence  to  charge  (lel)ts  on  land,  526,  527. 

of  mortgage  debts  on  land  devised,  528-534. 

order  of,  not  disturbed  by  wasting  of  the  personal  estate,  534. 

abatement  of  general  legacies.  535,  536,  540. 

abatement  of  annuities,  536,  537. 

priority  among  legatees,  537,  538. 

specific  legacies,  538. 

liability  of  shares  to  calls,  539. 

legacies  charged  on  land  specifically  devised,  541. 

charging  legacies  on  land,  542-553. 

MASSES  — 

regarded  as  a  superstitious  use  in  England,  1202,  1238,  1259. 
devises  for.  are  valid  in  England  by  statute,  1259. 

bequests  for,  may  be  valid  in   the  United  States  as  for  religious  pur- 
pose, 1202.  12(W,  rj()3,  n.,  1259. 
ber|Uf'Hts  for,  should  be  nunle  to  priest  or  church  direct  and  not  in  trust, 
1202,  1203,  1203,  n, 

MEADOW  — 

may  be  included  in  devise  of  farm,  107. 


IttOG  INDEX. 

Keferences  are  to  pages. 

MEMBER  — 

of  religious  society  as  an  attesting  witness,  285. 

MEMORANDUM  — 

for  the  preparation  of  wills,  when  not  testamentary,  50,  51. 

MEMORY  — 

amount  of,  required  to  constitute  testamentary  capacity,  111-113. 

character  of,  in  aged  persons,  IGO,  161. 

manner  of  decay  of,  as  old  age  approaches.  163,  163. 

entire  loss  of,  destroys  testamentary  capacity,  161-164. 

of  aged  witness  to  prove  lost  will,  376. 

MENTAL  CONDITION  — 

as  bearing  upon  undue  influence,  144,  179-183,  198-200. 
(see  Insanity.) 

MENTIONED  — 
construed,  1389. 

MERCHANDISE  — 

included  under  "goods  and  chattels,"  418. 
Included  under  "movables,"  419. 

MERGER  — 

of  legal  and  equitable  interests,  1132. 

takes  place  only  when  interests  are  of  same  character,  1132. 

none  when  contrary  to  intention  of  the  testator,  1133. 

of  charged  legacy,  551,  553. 

MILITARY  SERVICE  — 

nuncupative  wills  executed  by  persons  in,  242,  243. 
domicile  while  in,  41, 

MINOR  — 

domicile  of,  43. 

change  of  domicile  of,  by  father  or  mother,  43. 
interest  on  legacy  to  support,  578,  579. 
competency  of,  as  attesting  witness,  374. 

MINORITY  — 

devises  over  on  death  in,  631,  622,  667,  668. 

suspension  of  alienation  during,  689,  1364,  1365. 

accumulation  of  income  for,  1378-1383. 

(see  Majority.)  ^ 

MISNOMER  — 

does  not  invalidate  devise  to  charitable  institution,  1243,  1244,  1245,  n. 
parol  evidence  to  remove,  1243,  1244. 
facts  which  are  relevant  to  remove,  1245. 

MISREPRESENTATIONS  — 

wills  procured  by,  are  invalid,  217,  218. 

MISSIONARY  — 

bequests  for  support  of,  are  valid  as  charities,  1199,  1200,  1200,  n. 

MISTAKE  — 

distinguished  from  delusion,  126,  127. 

wills  executed  by.  230,  231. 

destruction  of  will  by.  is  not  a  revocation,  308,  346,  347. 

insertion  of  revocation  clause  by,  353. 

in  enumerating  number  of  daughters,  800,  801. 

of  law,  not  relieved  against  in  case  of  an  election,  1014-1016. 

as  to  ownership  of  property,  does  not  raise  an  election,  1026. 

parol  evidence  to  show,  1404. 

MISTAKEN  RECITALS  (see  Recitals). 


INDEX,  14C7 

References  are  to  pages. 

MISTRESS  — 

will  in  favor  of,  when  invalid  for  undue  influence,  212,  213. 

MONEY  — 

when  it  will  not  pass  under  gift  of  "goods  and  chattels,"  418,  419,  426, 

428. 
means  cash  on  hand  or  in  bank,  419,  420. 
may  include  property  generally.  419,  420,  421. 
when  gift  of,  is  void  for  uncertainty  of  amount,  1386-1389. 
on  deposit,  may  pass  under  bequest  of  shares,  422. 
does  not  pass  by  gift  of  "contents  of  a  house,"  424. 
legacy  in,  is  general,  554. 
legacy  of,  may  be  specific,  557. 

MONUMENTS  — 

gift  to  erect,  if  public,  is  valid,  121. 

when  gifts  to  build,  are  invalid,  1222. 

the  rule  as  to  the  validity  of  gifts  to  erect,  in  the  United  States,  1223. 

MOREOVER  — 

defined,  432-434. 

MORPHINE  — 

testamentary  capacity  as  affected  by  the  use  of,  156,  157. 

MORTGAGE  — 

equity  of  redemption,  when  passes  by  will,  79. 
wlien  payment  of,  from  personal  projjerty,  528. 
devisee  may  take  subject  to.  528. 
land  acquired  by  testator  subject  to,  529. 
asstirnption  by  testator  of  personal  liability,  529. 
giving  of  new  obligation  by  testator,  529,  530. 
when  part  of  purchase  price  of  land  bought  by  testator,  530. 
land  to  widow  in  lieu  of  dower,  exoneration  from,  530,  531,  1050,  1051. 
rights  of  widow  who  has  joined  in,  531. 
marshaling  in  favor.  532,  533. 

statutes  regulating  land  devised  incumbered  by,  533. 
specific  legacy  of,  adeemed  by  payment,  565. 
of  land  specifically  devised,  is  an  ademption,  566,  567. 
when  power  of  sale  may  imply  power  to  give,  1119. 
trustee  may  invest  in  first  or  second,  if  equity  of  redemption  is  enough, 
1144,  1146. 

MORTIS  CAUSA  (see  Doxations). 

MORTMAIN  — 

statutes  of,  90,  1261,  1263. 
restrictions  of,  evaded  by  uses,  1093. 

MOULDING  LANGUAGE  OF  WILL  — 
general  considerations,  483,  484. 
repugnant  clauses,  485-487. 

clear  gift  and  sulwequent  vague  language.  487-489. 
inconsistent  clauses  may  be  reconciled.  490-492. 
rejecting  meaningless  and  superfluous  words,  493-495. 
by  transposing  words,  495-497. 
caution  to  be  em|)loyed  in,  497. 
adding  and  supplying  words,  .500-.502. 
supplying  words  on  inference.  503. 
"and  "  and  "or  "  used  intcrcliangealjly,  503-506. 
supplying  words  to  indicate'  lailure  of  issue,  507,  508. 
as  regaids  puiuituation.  50!),  510. 
expunging  scandalfjus  matli  r,  510. 

MOVABLES  — 

primarily  nioaiis  tilings  t.m^jiblo,  419. 

dofs  not  iiK  luil<;  jironiissory  note.s,  debts  and  clioses  in  action,  419. 

does  not  iii(!liide  iikjikv,  426,  42H. 


14G8  INDEX. 

References  are  to  pages. 

MUNICIPAL  CORPORATION  — 

capacity  at  common  law  and  by  statute,  91.  92,  1219,  1320. 

power  of,  to  take  lamls  out  of  city  limits,  92. 

gift  to,  must  be  germane  to  purpose  of,  93. 

duty  as  a  trustee,  93. 

has  no  power  to  act  as  trustee  of  a  religious  trust,  95,  90. 

gifts  to,  for  educational  purposes,  97. 

devises  to,  for  parks  and  public  buildings,  97,  98. 

for  libraries  and  museums,  9'.). 

as  a  trustee  of  charitable  trust  with  discretion  to  select,  99,  100. 

equitable  jurisdiction  over,  101. 

gift  to  inliahitants  of,  when  unincorporated.  1241-1243. 

charitable  gifts  for  purposes  of.  91,  120G,  1219,  1220. 

dutv  of,  to  care  for  paupers,  1208. 

devise  to,  for  the  benefit  of  the  poor.  1209,  1210,  1211. 

inhabitant  of,  as  attesting  witness,  285. 

MURDER  — 

of  testator  by  the  beneficiary,  224. 

MUSEUM  — 

bequest  to  municipal  corporation  to  maintain,  99,  1206. 
gift  for,  is  void  if  for  private  person,  119. 

MUTES  — 

testamentary  capacity  of,  168-170. 

MUTUAL  WILLS  — 

defined  and  distinguished  from  joint  wills,  18. 
probate  and  revocation  of,  19,  20. 

'•MY  PRESENT  PHYSICIAN"— 
meaning  of,  22. 

MYSTIC  WILL  — 
defined,  243. 

NAME  — 

effect  of  erasing,  817. 

condition  as  to  assumption  of,  time  for  its  performance,  643, 646,  050,  n., 

677,  078. 
assumption  of,  by  act  of  legislature,  679. 

gifts  to  persons  of  "name"  means  those  of  family  or  stock,  807,  808. 
devises  to  heirs  of  particular  name,  810,  820,  840. 
(see  Signature  of  the  Testator.) 

NAMED  — 

construed,  1391. 

NATIONAL  DEBT  — 

validity  of  bequest  to  pay,  1213. 

NATURAL-BORN  CHILDREN  (see  Illegitimate  Children). 

NATURALIZATION  — 

certificate  of,  when  conclusive,  85. 
of  married  women  and  minors,  86. 
retroactive  effect  of,  86. 

NAVAL  SERVICE  — 

domicile  of  persons  engaged  in,  41. 

nuncupative  wills  executed  by  persons  in,  242,  243. 

NEAREST  RELATION  — 

construed,  787,  788. 

NECESSARY  IMPLICATION  (see  Implication). 


INDEX.  1409 

References  are  to  pages. 

NEEDY  RELATIONS  — 

gifts  to,  construed,  788,  789. 

NEGLIGENCE  — 

of  trustee,  what  constitutes,  1133-1135. 

when  basis  for  removal  of  trustee,  1131. 

liability  of  trustee  for  his,  1137. 

liability  of  trustee  for  that  of  his  associate,  1137,  1138. 

measure  of  damages  for,  in  case  of  a  trustee,  1137. 

executor's  liability  for,  1138. 

of  trustee  in  investing  trust  property,  1143-1147. 

(see  Trustee.) 

NEPHEWS  AND  NIECES  — 

mean  those  by  consanguinity,  792. 
when  those  by  marriage  included,  793,  794 
great-nephews  and  great-nieces  included,  794-796. 
presumption  that  those  legitimate  are  meant.  796. 
children  of,  when  taking  by  representation,  796-793. 

NEXT  MALE  HEIR  — 
creates  estate  tail,  863. 
rule  in  Shelly's  case  applied,  863. 

NEXT  OF  KIN  — 

distribution  "according  to  statute "  means  .statute  existing  at  testa- 
tor's death,  25. 

are  proper  parties  in  suit  to  establish  lost  will,  373. 

are  proper  parties  to  an  action  to  construe,  611. 

adopted  child  as  one  of,  717,  718. 

meant  by  gift  to  "  family,"  782-784. 

"relations"  equivalent  to,  785. 

execution  of  power  of  appointment  among,  789. 

take  gifts  of  personal  property  to  "  heirs,"  826-828. 

when  husband  or  wife  may  take  as.  831,  832. 

may  mean  nearest  blood  relations.  836-838. 

degrees  of  relationship  by  civil  law,  837. 

when  of  equal  degree  take  as  tenants  in  common,  837. 

construction  of  words,  when  statute  of  distribution  is  referred  to,  838, 
839. 

take  x>er  stirpes  when  statute  is  referred  to,  838,  830. 

take  per  capita  when  equality  of  division  is  directed,  839,  840. 

of  a  particular  name  or  sex,  840. 

gift  to  those  who  are  worthy,  840. 

in  case  of  intestacy,  840. 

of  paternal  line,  841. 

when  ascertained  as  a  class  if  vesting  is  immediate,  841,  842. 

wlien  ascertained  as  a  class  if  vesting  is  postponed,  842,  843. 

when  ascertained  where  gift  is  future  after  a  life  estate  in  sole  next  of 
kin,  842.  843.  844. 

of  pcTsons  other  than  the  testator,  844,  845. 

pre.sumption  that  testator  means  tiioso  who  are  legitimate,  84.5. 

may  take  under  gift  to  legal  or  personal  representatives.  .S48-.S.")0. 

exi)re.ssion  favoring  their  taking  as  "personal  representatives,"  819, 
850. 

of  incompetent,  their  right  to  claim  proceeds  of  land  ordered  to  bo 
sold.  980-981. 

resulting  trust  in  favor  of,  989,  990. 

right  of  widow  as,  not  barred  by  devise  in  lieu  of  dower,  1010. 

(see  Guild  e.n  Ventke  sa  Mere;  Cuiluke.v;  Ueuw;  Classe.^.) 

NIECES  (sec  Nei'IIEWs  a.nu  Niece.s). 


1470  INPKX. 

References  are  to  pages. 

NON-ACCESS  — 

husband  and  wife  cannot  prove.  750. 

proof  of.  rebuts  presumption  of  legitimacy,  750. 

proved  by  showing  absence  of  husband,  750. 

NON-EXPERT  — 

may  testify  to  mental  condition  of  the  testator,  140. 
must  relate  facts  on  which  his  opinion  is  based,  141. 
may  testify  to  drunkenness  of  the  testator,  155. 

NON-RESIDENTS  (see  Aliens). 

NON-REVOCATION  — 

of  will,  raises  presumption  against  fraud,  189,  190. 

NON-TESTAMENTARY  WRITING  — 
invalidity  of  revocation  by,  836,  337. 

NOTARY  — 

wills  executed  before,  in  Louisiana,  244. 

NOTE  — 

presumption  of  satisfaction  by  legacy  to  holder  of,  603. 
specific  legacy  of.  adeemed  by  payment,  5(35. 

"NOW  LIVING"  — 
construed,  22,  720. 
means  at  execution  of  will,  720. 
heirs  of  person  who  is,  818,  819. 

"NOW  OCCUPIED"  — 
meaning  of,  22. 

NUMBER  — 

of  persons  who  are  legatees  incorrectly  stated,  743,  744 

NUMBER  OF  WITNESSES  — 

required  to  prove  a  lost  will,  377,  378. 

NUNCUPATIVE  WILLS  — 
origin  and  definition,  235. 
as  regulated  by  statute  of  frauds,  236. 

character  and  purpose  of  the  request  to  the  witnesses,  230,  S37. 
the  language  of  the  request,  237.  238. 
must  be  made  in  last  sickness,  238,  239. 
value  of  property  disposed  of  by,  239. 
testamentary  capacity  required  in,  239,  240. 
must  be  oral,  240,  241. 

real  property  cannot  be  disposed  of  by,  241. 
of  soldiers  and  sailors,  342-244. 
in  Louisiana,  243,  244. 

o. 

OBLITERATION  — 

revocation  by,  304,  305. 
(see  Cancellation.) 

OCCUPATION  — 
defined,  409-411. 

of  dwelling-house  and  factory  contrasted,  410. 
description  by,  prevails  over  distances,  410. 

OFFSPRING  — 

fee  tail  created  by  limitation  to,  862,  874.  n. 

rule  in  Shelly's  case  applies  to  a  remainder  to,  890. 

means  issue,  919,  n. 


INDEX.  1-tTl 

References  are  to  pagec. 

OLD  PERSONS  — 

testamentary  capacity  of,  160,  165. 

habits  of,  160. 

loss  of  memory  by,  161-165. 

OMISSION  — 

if  intentional  cannot  be  filled.  500. 
when  apparent  at  a  glance,  498-501. 
may  be  supplied  from  context,  502-504. 
parol  evidence  to  explain,  1404. 

OMISSION  OF  CHILDREN  FROM  WILL  — 
does  not  revoke  at  common  law,  3'25,  326. 
the  rule  at  the  Roman  civil  law,  327,  328. 
statutes  regulating,  328. 
when  intentional,  329. 
how  intention  may  be  shown.  330-382. 
provision  for  children  must  be  substantial,  331,  333. 
parol  evidence  to  show  intention,  332,  333,  334. 

ONUS  PROBANDI  (see  Burden  of  Proof). 

OPINIONS  — 

of  testator  in  politics  and  i-eligion,  not  insane  delusions,  129,  130. 

OPPORTUNITY  — 

undue  influence  not  presumed  from,  185,  186. 

"OR"— 

"and  "  may  be  substituted  for,  in  case  of  a  gift  over  on  death  under  ma- 
jority, 448,  476,  477,  504-500. 
may  be  substituted  for  "and  "  in  devise  over  on  death  "  unmarried  and 

without  issue,"  633. 
as  a  word  of  substitution  to  prevent  lapse,  476-478,  504-506. 

ORAL  WILLS  (see  Nuncupative  Wills). 

ORCHARD  — 

may  pass  with  house  in  devise  of  messuage  or  premises,  403,  404. 

ORIGINAL  WILL  — 

not  admitted  in  an  action  to  construe,  013. 

ORPHANS— 

devises  for  support  of,  are  valid,  1211. 

when  half-orplians  included,  1211. 

bequests  to,  may  be  void  for  indefiniteness,  1313. 

orphan  asylums  defined,  1197,  1212. 

ORNAMENTS  — 

includes  jewelry,  413. 

OWNERSHIP  — 

misrecitals  as  to,  in  will,  628-633. 

OWNERSHIP  OF  LAND  — 

gifts  to  advance  reform  in,  1215,  1219. 


P. 


PARALYTIC  — 

tt'Stamentary  capacity  of,  176,  177. 

PARKS  — 

d.' lined,  99, 

bequests  to  purchase  and  luaintaiii,  9S,  99. 


1472  INDEX. 

References  are  to  pages. 

PAROL  EVIDENCE  — 

not  received  to  prove  statute  law,  30,  37. 

received  to  prove  common  and  unwritten  law  or  custom,  37. 

to  sliow  whether  writing  is  a  will,  47,  48. 

to  raise  trust  ex  malejicio,  221. 

to  rebut  presumption  of  undue  influence,  325,  227. 

to  supply  or  contradict  date,  247. 

to  show  writing  referred  to  not  existent,  281. 

of  revocation  by  destruction,  309-311. 

revocation  by,  at  common  law,  335-337. 

to  show  that  omission  of  child  from  will  was  intentional,  332-335. 

to  rebut  or  strengthen  presumption  of  revocation,  317,  318. 

not  received  as  direct  evidence  of  intention,  333,  334,  599,  600,  604,  812, 

957. 
of  contract  to  devise,  392. 

not  competent  to  confine  meaning  of  word,  402,  812,  818,  1395. 
to  show  how  much  land  comprised  in  term  "farm,"  408. 
to  show  intention  to  charge  debts  on  land,  526. 
insufficiency  of  personal  property  may  be  shown  by,  526,  527. 
to  identify  land  devised,  408,  411,  1409,  1410. 
to  show  legacy  is  a  charge,  545. 
to  show  legacy  is  substitutional,  572. 
to  show  intent  of  testator  as  to  advancements,  599,  600. 
Jiot  competent  to  show  legacy  is  in  satisfaction  of  a  debt,  604. 
to  show  meaning  of  "grandchildren,"  715. 
to  show  tlie  testator  meant  to  benefit  illegitimate  children,  755-757, 

796. 
not  received  to  extend  meaning  of  heirs,  812,  818. 
not  received  to  show  intention  to  convert,  957. 
to  show  intention  to  put  party  to  an  election,  1023. 
to  show  circumstances,  488,  1396,  1398. 
to  explain  ambiguities,  1398,  1399. 
to  identify  subject-matter,  1401-1403. 
to  show  mistakes  and  supply  omissions,  1404-1406. 
to  explain  the  meaning  of  words,  812,  818.  1406-1408. 

PARSONAGE  — 

bequest  to  build  or  repair,  is  valid  as  a  charity,  1199,  n. 

PART  — 

defined,  433. 

PARTIAL  PROBATE  — 

of  will  procured  by  undue  influence,  223. 

PARTIES  — 

to  suit  to  establish  lost  will,  372,  373. 

to  action  to  construe  will,  610. 

trustees  proper,  to  all  actions  relating  to  trust  property,  1133. 

PARTITION  — 

of  land  in  trust  does  not  terminate  the  trust,  1114,  n. 

words  of,  create  tenancy  in  common,  700-703. 

conversion  of  land  of  infant  tenant  in  common  by  action  for,  983. 

PART  PERFORMANCE  — 

as  taking  contract  out  of  statute  of  frauds,  389. 

PASSIVE  TRUSTS  — 

abolished  by  statutes,  1096,  1098,  1110, 
trusts  to  convey  are  not,  1098. 

PASTURE  — 

included  in  devise  of  farm,  405,  407. 

PAUPERS  (see  Poor;  Municipal  Corporation;  Charities). 


INDEX.  1473 

References  are  to  pages. 

PAYMENT  — 

postponement  of,  effect  on  legacy,  442,  578. 

of  legacy,  lapse  in  case  of  legatee's  death  before,  461. 

survivorship  in  case  of,  at  majority,  46"2. 

of  legacy,  must  be  one  j-ear  after  death  of  the  testator,  574. 

effect  of  postponement  of,  by  executor,  575,  576. 

direction  for,  does  not  always  create  power  of  sale,  1118. 

of  annuities,  is  yearly,  1084. 

of  annuities  at  short  periods,  1085. 

(see  Division.) 

PENCIL  — 

validity  of  wills  written  in,  248. 

no  presumption  against  the  use  of,  248. 

spaces  filled  by,  249. 

alterations  in,  865. 

presumption  as  to  finality  of  cancellations  in,  316. 

PER  CAPITA  — 

distribution  among  relations,  790,  791. 
distribution  among,  when  in  equal  shares,  924. 
distribution  among  descendants  is,  927. 
issue  take  as  purchasers  by,  919. 
(see  Distribution;  Per  Stirpes.) 

PERFORMANCE  — 

of  conditions,  when  impossible  or  illegal,  645,  646. 

differs  when  condition  is  precedent  or  subsequent,  646,  647. 

when  impossible  without  fault  of  legatee,  647. 

of  illegal  and  impossible  conditions  attached  to  legacies,  648,  649. 

the  waiver  of,  649. 

when  repugnant  to  estate  devised,  649,  650. 

ignorance  of  legatee  does  not  excuse  non-performance.  659. 

of  condition  requiring  residence,  by  miuor  or  adult,  676,  677. 

PERPETUITY  — 

the  creation  of,  by  restrictions  upon  alienation,  685-688. 

created  by  the  nature  of  a  power  to  appoint  in  A.  or  his  heirs,  1181. 

in  a  power  to  re-settle  estate  on  successive  births  of  life  tenants,  1181. 

lives  must  be  in  being  at  date  when  donor  confers  power,  1182,  1855. 

when  a  power  to  appoint  among  issue  is  invalid  as,  1182. 

a  power  to  appoint  among  children  or  grandchildren  may  be  invalid 
as  a,  1182,  1849. 

distinction  between  general  powers  and  special  powers  as  to  the  crea- 
tion of,  1183,  1184. 

appointments  to  a  class  may  be  separated  when  partially  void  as  cre- 
ating, 1188,  1184,  1805. 

limitation  in  default  of  an  appointment  under  a  power  may  be,  though 
by  the  power  none  is  created,  1188,  1184. 

may  be  created  by  a  general  power  to  be  exercised  by  a  will,  1184. 

created  by  a  fee  tail,  861. 

not  created  by  a  future  use  after  an  estate  in  tail,  1108. 

law  of,  is  applicalile  to  shifting  uses,  1107. 

trust  must  nut  offend  rule  of,  1110. 

if  created  by  a  jtrivat*.'  charity  tlie  trust  is  void,  1195-1197. 

definition  and  general  considerations,  1888-1810. 

remoteness  of  contingent  remainders,  1840,  1842. 

the  modern  rule  of,  1848-1847. 

the  possibility  of  tlie  contingent  event,  1847-1850. 

future  estates  to  unborn  |)<,'rsc*s,  11M2,  1819-1851. 

created  by  gifts  to  grand(;liilclrfn,  1851-lli58. 

[jeriod  must  be  nieaMin-d  by  life  or  lives,  1858-1855. 

period  to  begin  at  the  death  of  the  testator,  1182,  1855,  l850. 

not  a|)()licabl<!  to  vested  estates,  1856. 

power  of  .sale  preveuta  creation  of,  1857,  1858. 
08 


14  Ti  IXDEX. 

References  aia  to  pages. 

PERPETUITY  (continued)  — 

not  applicable  to  charities,  1359,  1360,  1381-1383, 

devises  to  non-existent  corporation.^  are,  1240,  1361,  1363. 

devise  on  the  termination  of  a  charity  may  be  void,  1302,  1363. 

suspension  of  the  power  of  alienation  during  minorities,  1364,' 1365. 

may  be  voided  if  class  gifts  are  separable,  136.'5-13T0. 

effect  of  invalidity  of  a  devise  upon  tlie  next  expectant  limitation,  1370- 

1373. 
statutory  regulation  of,  in  the  United  States,  1373. 
the  rule  of,  in  Connecticut,  1373. 
the  rule  of,  in  New  York,  1374-1378. 
for  purposes  of  accumulation,  1378-1381. 

not  applicable  to  accumulations  for  charities,  13.")9,  1381-1383. 
created  for  private  purpose,  is  invalid,  1221,  1223. 
is  created  by  a  contingent  remainder,  1280-1290. 

PERSONAL  CHARGE  — 

fee  by  implication  from,  618. 

PERSONAL  PROPERTY  — 

gifts  of,  construed  by  lex  domicilii,  30. 

acquired  after  execution  of  will,  passes  by  it  at  common  law,  80,  81. 

capacity  of  alien  to  take  by  will,  84. 

amount  of,  that  may  be  given  by  nuncupation,  236-239. 

wills  of,  required  to  be  written,  246. 

power  of  married  woman  to  bequeath,  173,  174. 

meaning  of,  414. 

includes  money,  stocks,  notes  and  tangible  chattels,  414,  415. 

includ  's  household  furniture  and  wearing  apparel,  415. 

described  by  reference  to  locality,  426. 

contained  in  box,  desk,  or  house,  426.  428. 

primary  liability  of,  for  debts,  515,  516. 

language  sufficient  to  exonerate,  516,  522. 

burden  of  proof  to  show  exoneration.  518.  519. 

funeral  and  testamentary  expenses  charged  on  land,  519,  520. 

exonerated  when  ijb  is  specifically  given,  250. 

debts  charged  on  a  part  of,  521. 

conversion  of  land  into,  by  charge  of  debts,  523. 

parol  evidence  to  charge  debts  on,  526. 

wasting  of,  does  not  exonerate,  528. 

liability  of,  for  mortgage  debt,  528-534. 

is  governed  by  the  rule  in  Wild's  case,  776,  777. 

gifts  of,  to  heirs  are  taken  by  next  of  kin,  826-838. 

substitutionary  gifts  of,  to  heirs,  827. 

direction  to  pay  in  gift  of,  to  heirs  favors  next  of  kin,  828. 

direction  to  divide,  equally  among  heirs  favors  next  of  kin,  829. 

when  given  to  heir  as  persona  designata,  829.  830.  831 

effect  of  blending  of,  with  real  property  in  gift  to  heirs,  830,  831, 

PERSONAL  REPRESENTATIVES  — 

devises  of  real  property  to,  go  to  the  heir,  853. 

when  executors  and  administrators  take  by  limitation,  852,  853. 

devises  to  be  taken  beneficially  by,  854. 

devises  to  be  taken  in  trust  for  the  estate,  855,  856. 

gifts  to,  for  their  own  benefit,  856,  857. 

motive  of  gift  to,  858. 

what  indicates  an  intention  to  accept  office,  859. 

generally  equivalent  to  executor  or  administrator,  846,  847. 

presumption  that  the  words  ai'e  words  of  limitation,  847,  848. 

may  mean  next  of  kin,  848. 

circumstances  favoring  next  of  kin,  848-850. 

gift  to,  divisible  per  stirpes,  favors  next  of  kin,  850,  851. 

direction  for  division  equally  among.  851. 

mode  of  distribution  among  next  of  kin,  when  equivalent  to,  851,  853, 

(see  also  Executors.) 


INDEX.  1475 

References  are  to  pages. 

PER  STIRPES  — 

remainder  to  children  is  taken,  732. 

distribution  among  representatives,  850,  851. 

distribution  among  issue,  is  in  case  the  children  are  to  take  parent's 

share,  925. 
distribution  among  descendants  is.  when  statute  is  referred  to,  937. 
all  descendants  take,  though  not  concurrently,  937. 
(see  Classes;  Distribution;  Heirs;  Next  of  Kin;  Per  Capita.) 

PERSUASION  — 

is  not  undue  influence,  205,  206. 

PHYSICAL  CONDITION  — 

to  show  incapacity  or  undue  influence,  198,  199. 

PHYSICIAN  — 

may  testify  to  mental  condition  of  the  testator,  139. 
of  testator  as  attesting  witness,  286. 
may  testify  to  age,  727,  738. 

PICTURES  — 

pass  under  a  bequest  of  furniture,  423,  425. 

PLATE  — 

is  included  under  effects,  415,  416,  423.' 
ademption  of  legacy  of,  by  x'emoval,  563. 

PLEDGE  — 

specific  legacy  must  be  redeemed  from,  538. 

POLICY  OF  INSURANCE  — 

proceeds  of,  may  be  bequeathed,  70-72. 

POOR  — 

validity  of  bequest  to,  as  charities,  1305,  1207. 

duty  to  provide  for,  is  germane  to  purposes  of  a  church,  1207. 

duty  of  municipal  corporations  to  provide  for,  1207,  1208. 

classification  of.  into  tour  classes,  1309,  1310. 

doctrine  of  cy  pres  invoked  in  aid  of  gifts  to  the,  in  Massachusetts, 

12-60. 
gifts  for,  when  valid  as  sufficiently  definite,  1235. 
(see  Municipal  Corporations.) 

POOR  RELATIONS  — 

gifts  to,  construed,  788,  789. 

PORTION  — 

presumption  against  double,  600. 
defined,  433,  59:1 

satisfaction  of,  by  legacy,  592,  599. 
differing  from  legacy,  593,  595,  601. 
to  husband  of  legatee,  594. 

POSSIBILITY  — 

not  coupled  with  interest,  not  devisable,  59,  01,  63. 
remainder  must  vest  upon,  1342. 

POSSIBILITY  OF  ISSUE  — 
estate  after,  864. 

POSSIBILITY  OF  REVERTER  — 
defined,  58,  638. 
may  be  devised,  59,  61. 

POVERTY  — 

of  legatee  to  explaiti  uiicipial  distribution,  193. 

POWER  — 

conllict  of  laws  as  to  wHIh  executing,  32. 


1476  INDEX. 

References  are  to  pages. 

POWER  OF  APPOINTMENT  — 

will  executed  by  woman  under,  is  not  revocable,  323. 

wills  executed  under,  not  revoked  by  jj;eneral  revocation  clause,  354. 

appoiiitaient  under,  not  revoked  by  inconsistent  disposition,  354,  355. 

appointment  under  by  will,  revoked  by  deed,  355. 

amon<:j  children,  734,  736,  1170. 

takes  in  child  en  ventre  sa  mere,  747. 

for  benefit  of  a  family,  783,  784. 

amonj^  relations  who  are  in  need,  789,  790. 

amoufj  nieces,  794. 

operation  of,  under  rule  in  Shelly's  case,  883. 

among  issue,  914,  915,  1176. 

cases  of  election  under,  1033. 

election  must  be  made  when  illegal  appointment  is  made,  1033. 

in  favor  of  chai'ities,  not  executed  by  equity  if  personal  to  donee,  1338. 

among  ciiarities,  not  invalid  because  appointees  are  indefinite,  1247. 

writing  executing,  ought  to  refer  to,  1165. 

donor  may  prescribe  formalities  for  the  execution  of,  116G. 

when  special,  is  in  trust,  1103. 

value  and  employment  of,  110-3. 

parties  who  are  interested  in  the  execution  of.  1103. 

special  and  general  powers  distinguished,  1163,  1176. 

when  appurtenant,  collateral  or  en  grons,  1163,  1164. 

language  necessary  to  create,  1165. 

strict  execution  of,  required,  1105. 

writing  is  i-equired  to  execute,  when  the  power  relates  to  real  prop- 
erty, 116.5.  1106. 

defective  execution  of,  relieved  in  equity,  1166. 

intentional  omission  to  execute  not  relieved  in  equity,  1167,  1168. 

execution  of,  by  a  general  or  residuary  clause  in  a  will,  1168-1170. 

when  uiandatory,  non-execution  of,  relieved  in  equity,  1170,  1171. 

when  discretionary,  equity  may  exercise  its  discretion,  1171,  1173. 

gift  to  a  class  with  power  to  divide  among  the  class  in  donee,  1173, 
1174. 

when  discretion  of  donee  is  absolute  equity  will  not  interfere,  1175, 
1176. 

to  devise  to  children  or  issue,  1176. 

power  cannot  be  exercised  for  a  corrupt  or  fraudulent  purpose,  1177. 

illusory  execution  of,  1178,  1179. 

extinguishment  of,  1179. 

lapse  of  naked  power  of  sale  when  its  existence  is  no  longer  needed, 
1180. 

who  may  be  donee  of,  1181. 

when  a  perpetuity  is  created  by  the  creation  or  the  execution  of,  the 
power  is  void,  1 181-1184. 

estate  by  implication  on  failure  to  execute,  633,  945. 

POWER  OF  ATTORNEY  — 

may  be  probated  as  a  will,  49. 

POWER  OF  DISPOSAL  — 

may  raise  a  fee-simple  by  implication,  938,  939, 

does  not  raise  fee  when  attached  to  an  express  life  estate,  939. 

devise  of  "what  remains"  after  exercise  of,  940. 

may  be  exercised  by  life  tenant  for  support,  941,  943. 

restricted  execution  of,  943. 

by  will,  conferred  on  a  life  tenant,  944,  945. 

effect  of  a  default  of  an  appointment,  633,  945. 

(see  also  Power  of  Appointment.) 

POWER  OF  SALE  — 

validity  of,  cannot  be  tested  in  action  to  construe,  609. 

need  not  be  express  in  order  to  convert.  958. 

if  wholly  discretionary,  then  no  conversion,  957,  959,  960,  963. 


INDEX.  1477 

References  are  to  pages. 

POWER  OF  SALE  (continued)  — 

for  payment  of  debts,  does  not  convert  out  and  out.  959,  n.,  9G0,  9G1. 

conversion  may  take  place  without,  9G1,  963,  964,  9G5. 

after  death  of  life  tenant.  966,  967. 

execution  of,  upon  a  contingency  or  on  requestor  consent,  969,  970.  973. 

creation  of,  over  land  does  not  exonerate  personal  pi'operty,  517,  olS. 

created  by  direction  to  pay  debts  out  of  proceeds  of  land,  SSI. 

not  by  direction  to  pay  out  of  "annual "  income,  534. 

modern  rule  as  to  effect  of  a  direction  to  pay  debts  out  of  land,  535. 

refusal  of  trustee  to  execute,  not  permitted  to  injure  devisee,  955,  956. 

exhausting  personal  property  in  connection  with,  968. 

extinguished  by  an  election  to  take  property  unsold,  993-998. 

how  created,  1115. 

may  be  exerted  by  beneficiary  in  case  of  a  passive  trust,  1115. 

trust  to  sell  land  is  not  executed  by  the  statute,  1115. 

in  fee,  may  be  created  without  words  of  inheritance,  1115. 

when  trustee  having,  has  the  legal  title,  1115,  1116. 

naked  power  created  by  mere  direction  to  sell,  1116,  1117,  11G5. 

when  land  descends  to  heirs  subject  to,  1116.  n. 

extinguished  by  non-user,  1117,  n.,  1134,  1189. 

does  not  authorize  mortgage,  lease  or  exchange,  1119. 

must  be  exercised  for  purpose  intended,  1130. 

when  discretionary,  cannot  be  delegated,  1134,  1139. 

conferred  upon  trustee  or  executor  ratione  officii,  1134,  n. 

insertion  of,  may  prevent  a  perpetuity,  1857,  1858. 

trustee  cannot  purchase  for  himself  under,  1189-1 143. 

informality  in  execution  of,  may  be  cured  in  equity,  1166-1168. 

deed  in  execution  of,  must  refer  to  the  power,  1165,  1167. 

(see  also  Executor;  Trustee.) 

POWER  OF  SALE  FOR  SUPPORT  — 

devise  of  what  remains  does  not  enlarge  indefinite  devise  to  a  fee-sim- 
ple, 940.  943. 
extinguished  by  death  of  donee.  941. 
must  be  honestly  exercised,  943,  948. 
land  goes  to  remaindermen  in  default  of  execution,  943. 

PREACHING  (see  Church;  Friends  Meeting  House;  Religion). 

PRECATORY  TRUST  — 

not  created  by  devise  for  benefit  of  family,  780. 

defined,  1151. 

subject  and  object  of,  must  be  certain,  1151. 

language  must  be  imperative,  1153,  n. 

arises  from  language  of  recommendation,  request,  belief  and  desire, 

1153,  1154. 
limitation  on  the  meaning  of  "recommend,"  1153,  n. 
restrictions  placed  on  precatory  words  by  the  modern  cases,  1155-1157. 
relations  between  trustee  and  tlie  testator,  1157. 
none  when  discretion  is  aljsoliitc.  1157,  1158. 
a  wish,  recjuest  or  recommeiidation  does  not  create.  1158, 
words  of  hope  or  exi)ectation  do  not  create,  1159,  1160. 
by  a  devise  to  person  for  self  and  children,  1161,  1163. 
enforcible  in  equity.  1155. 
(see  also  Trust  a.nu  Trustee.) 

preferenc;k  — 

among  children  by  different  marriages,  718,  719. 

PREJUDK'E- 

is  not  delusion,  130,  137. 

PRE.MISES  — 

defined.  404. 

means  .sei)arate  piece  of  land,  401. 

may  include  garden.  slal>l<H.  b.-nns,  ((r..  with  a  liouso,  40L 


147S  INDEX. 

References  are  to  pages. 

PREMIUMS  — 

riglit  of  life  tenant  to,  5S6. 
trustee  not  liable  for  loss  of,  1147. 

"PRESENCE  OF  THE  TESTATOR"  — 
defined,  267. 

witnesses  must  attest  in,  2GG. 

testator  must  have  consciousness.  268.  > 

actual  view  by  testator  not  necessary,  268,  269. 
adjacent  room  may  constitute.  269. 
ability  of  testator  to  see,  270,  271. 

"PRESENT  DEBTS"— 
meaning  of,  23. 

PRESENT  TIME  — 

construction  of  words  referring  to,  21,  22,  410. 

PRESUMPTION  — 

of  survivorship  in  death  by  common  disaster,  26-28. 

of  domicile,  40. 

of  acceptance  of  bequest  by  person  non  siii  juris,  104,  1077. 

of  testamentary  capacity,  10(5-109. 

of  sanity,  where  testator  had  been  insane,  110,  133-137. 

of  continuance  of  intoxication,  153-155. 

of  revocation,  when  will  is  found  mutilated,  307,  313. 

of  revocation  from  loss  or  disappearance  of  a  will,  317-321,  371,  373. 

that  consent  to  a  marriage  has  been  given,  659. 

of  revocation  rebutted  by  parol,  332-334. 

of  revocation  from  destruction  or  disappearance  of  one  copy  of  dupli- 
cate vrills,  356,  357. 

of  the  date  of  alterations  in  a  will,  363-365. 

as  to  repeated  legacies,  569-572. 

of  satisfaction,  589-607. 

against  intestacy,  617. 

of  legitimacy  of  children,  749,  750. 

in  favor  of  heir,  627,  628. 

from  false  statement  that  legacy  has  been  given,  630. 

that  legitimate  children  are  meant  in  devise  to  children,  753,  753. 

as  to  primary  meaning  of  technical  words,  811,  818. 

that  "heirs  of  the  body"  are  used  in  a  technical  sense.  886-888. 

in  case  of  election  that  man  intends  to  dispose  onlv  of  his  own  prop- 
erty, 1008,  1011,  1013,  n. 

under  statute  that  general  devise  is  in  lieu  of  dower,  1051,  1052. 

that  gift  of  personal  property  is  not  in  lieu  of  dower,  1054. 

of  acceptance  of  trust  by  interference  with  trust  property,  1125. 

of  proper  performance  of  duty  by  trustee,  1131,  1145. 

against  validity  of  purchase  by  trustee,  1140. 

of  ratification  by  beneficiary  of  sale  by  trustee  to  himself,  1141. 

PREVENTION  OF  LAPSE  — 

intention  must  appear  in  will  and  cannot  be  shown  by  parol,  444. 

clear  terms  required,  444. 

gift  over  in  case  of  death  indispensable,  444 

if  death  under  majority,  444. 

words  of  succession  do  not,  445. 

by  gifts  to  heirs,  assigns  or  representatives  of  legatee,  445,  446. 

PRICE  — 

effect  of  direction  to  sell  land  at  a  fixed,  971,  973, 

PRIEST  — 

may  testify  to  the  mental  condition  of  the  testator,  140. 
will  in  favor  of,  not  necessarily  undue,  210,  211, 1257. 

PRIMOGENITURE  — 

its  influence  ujjon  the  right  to  devise  lands,  7. 


ixDEx.  1479 

Eeferences  are  to  pages, 

PRINTED  FORM  — 

use  of,  invalidates  holographic  will,  16. 

revocation  clause  permitted  to  remain  in,  by  mistake,  353. 

will  on,  is  in  writing.  240,  247. 

danger  of  employing,  for  wills,  247. 

PRIORITY  — 

among  legatees  from  intention  or  character  of  gift,  537,  538. 

PRIVATE  CHARITY  — 

is  invalid  if  creating  a  perpetuity,  1195. 
illustrations  of  what  is  a,  1195-1197. 

PRIVILEGE  — 

waiver  of,  as  regards  attorney  or  physician,  286,  287. 

PROBATE  — 

refused  to  contingent  wills,  14. 

takes  effect  from,  and  by  relation  back  to  death  of  testator,  21. 

of  lost  wills,  369,  370. 

of  foreign  wills,  384,  385. 

writings  which  are  incorporated  by  reference,  382. 

PROBATE  COURTS  — 

their  jurisdiction  over  donations  causa  mortis,  1065. 
jurisdiction  to  construe  will,  612. 

PROCEEDS  — 

means  income  or  interest,  429. 

may  mean  the  results  of  sale  in  case  of  real  property,  429. 
of  sale  of  real  property  may  be  included  in  bequest  of  personal  prop- 
erty, 414,  418. 
of  insurance  policy,  may  be  bequeathed,  70-73. 

PROCREATION  — 

words  of,  necessary  to  create  fee  tail,  862. 

PROHIBITION  — 

gifts  by  will  to  advance,  1215,  1219. 

PROMISE  — 

to  dispose  of  property  given  by  will  inferred  from  silence,  220. 

of  one  binding  on  several,  221. 

trusts  ex  malejlciu  created  by,  218-223. 

to  dispose  of  property  may  be  proved  by  parol,  233-224. 

PROMISSORY  NOTES  — 

pass  under  bequest  of  money,  420. 
gift  causa  mortis  of,  1071-1073. 
when  they  are  wills,  52. 

PROPERTY  — 

synonymous  with  estate.  396. 

the  will  need  not  dispose  of,  8,  10,  255. 

includes  botli  real  and  personal,  400. 

intangible  and  invisible  things  are,  100. 

may  be  confined  in  meaning  to  real  propert}'.  100. 

meaning  of,  restric;ted  by  wfjrds  (jI  locality,  iOl. 

meaning  of,  restrained  by  wcjnls  vjnsdtin  generis,  401. 

when  after-acquired  land  passes  umler,  402. 

parol  evidence  not  received  to  confine  meaning,  402. 

PROVISIONS  — 

gift  for  life  of,  confers  ubHolutc  interest,  948,  919. 


14S0  INDEX. 

References  are  to  pages. 

PUBLICATION  OF  WILL  — 
when  unnecessary,  278,  279. 
defined,  278. 
mode  and  form  of,  279. 
by  silence  and  actions.  280. 
in  answer  to  questions,  280. 
object  of,  280. 
must  be  made  at  tlie  time  of  the  execution,  281. 

PUBLIC  POLICY  — 

consideration  of,  at  basis  of  conditions  in  partial  restraint  of  marriage, 

651-654. 
gifts  by  will  to  procure  changes  in  existing  laws  not  opposed  to,  1216, 
1217. 

PUBLIC  SCHOOLS  — 

gifts  to  municipal  corporations  for,  97.  98. 
gift  to  endow,  is  valid  as  a  charity,  1203-1205. 

PUNCTUATION  — 

not  important  in  a  will,  509. 

may  be  corrected  or  disregarded,  509. 

parol  evidence  to  illustrate,  510. 

PURCHASE  — 

creation  of  tenancy  in  common  by,  700. 

substitutional  legatees  take  by,  476,  477. 

children  as  word  of,  under  the  rule  in  Wild's  case,  770,  772,  773,  892,  n. 

heirs  and  next  of  kin  taking  by,  810-845,  884-888. 

executors  and  personal  representatives  taking  by,  846-858. 

as  a  word  of  purchase,  866,  892,  n. 

eldest  son  as  a  word  of,  866. 

heirs  of  the  body  as  words  of,  explained  by  children,  871,  872,  888. 

issue  a  word  of,  918-922. 

when  children  take  by,  711-751,  892,  n. 

PURCHASE-MONEY  — 

equity  will  follow  in  case  of  a  trust,  1148-1151. 

PURCHASE  OF  TRUST  PROPERTY  — 
by  trustee  invalid,  1139. 

payment  of  adequate  price  not  material,  1139. 
after  termination  of  trust,  1140. 
presumption  against  validity  of,  1140. 
cestui  que  trust  may  affirm  by  silence,  1141. 
acquiescence  after  conveyance  to  bona  fide  holder,  1141, 
beneficiary  must  repay  purchase-mone}%  1142. 
measure  of  trustee's  liability,  1142,  1143. 

Q. 

QUESTION  — 

publication  of  will  in  response  to,  280. 

E. 

RATIFICATION  — 

by  executor  of  power  of  sale  executed  by  co-executor,  1123. 
by  cestui  que  trust  of  purchase  by  trustee  for  himself,  1141. 

READING  WILL  — 

to  the  testator  is  necessary,  201,  202. 


INDEX.  14S1 

References  are  to  pages. 

REAL  ESTATE  — 

passes  under  a  devise  of  "property,"  401.  402. 

passes  under  a  de%-ise  of  "  all  effects."  416. 

the  word  "devise"  when  used  in  connection  with  " effects "  carries, 

417. 
is  not  ejusdem  generis  with  money  and  securities,  etc.,  413,  414. 
deed  to,  in  box  does  not  pass  by  gift  of  contents,  427. 
devise  of  proceeds  of,  429. 
passing  by  the  word  "legacy."  430.  431. 
capacity  of  alien  to  take,  under  will,  82-84. 
lapsed  devise  of,  when  going  to  heirs  and  when  in  residuum,  449-451. 

REAL  PROPERTY  — 

devises  of,  construed  by  lex  loci  rei  sitce,  29. 

power  to  devise  future  and  contingent  interest  in,  56-64. 

acquired  after  the  execution  of  the  will,  75-80. 

cannot  be  disposed  of  by  nuncupation,  241. 

passes  under  the  term  "estate,"  397,  398. 

RECEIPT  — 

character  of  executor's  and  trustee's,  1188,  1139. 

RECEIPT  OF  LEGACY  — 

distinguished  from  actual  receipt,  460. 

RECITAL  — 

that  legacy  given  is  in  addition.  630. 

that  legacy  has  already  been  given,  which  is  untrue,  630,  631. 

implied  gifts  arising  from  false  or  erroneous,  628. 

when  constituting  a  gift,  632. 

of  amount  of  legacies  given.  632,  633. 

of  number  of  children,  743,  744. 

RECOMMENDATION  — 

trust  created  by  words  of,  1151,  1153,  n.,  1156,  1158. 

RECONVERSION  — 

in  case  of  land  sold  to  pay  debts.  959,  n.,  960. 

takes  place  when  land  is  sold  without  consent,  970,  971. 

of  land  or  money  which  has  been  converted  by  the  order  of  a  court, 

981-9.^3. 
on  a  failure  of  the  testamentary  purpose.  986. 
when  sale  was  directed  for  an  unlawful  purpose,  988. 
when  proceeds  are  only  in  part  disjiosed  of,  988, 
resulting  trust  for  the  heirs,  987,  988. 
resulting  trust  for  the  next  of  kin,  988. 
the  person  who  takes  when  purpose  fails,  takes  the  property  as  it  is, 

989,  990. 

RECONVEYANCE  — 

will  be  decreed  when  trustee  sells  trust  property  to  liimself,  1142. 

RECORD  — 

of  writing  to  show  that  it  is  a  deed  and  not  a  will,  54. 

RF^EXECUTION- 
defined,  294. 

not  synonymous  with  republication,  294. 
exprt'ss,  (iffined,  295. 
constructive,  delint-d,  295. 
by  H  codicil.  295.  29(5. 
by  parol,  not  sudicji-nt,  297. 
jfrt'siiinption  (jf,  wIk-ii  rebutted,  298. 
do'.'M  not  revive  an  adtM-tneil  legacy,  298. 
effect  of  on  jiflerinviiiiri'd  l.md,  298.  299. 
of  holo;<rapbi(;  wilh,  299.  :!(M). 

necessary  to  revive  will  which  has  l>een  revoked,  1366,  .167. 
of  powers  defectively  executed,  ordiied  in  ec|iiily.  1165-1168. 


1482  INDEX. 

Roferencos  are  to  pages. 

REFEREXCE  — 

incorporation  of  non-holograpliic  wills  by,  17,  18. 

REFORM  — 

condition  as  to,  of  legatee.  643,  G83,  G84. 
gifts  to  procure,  when  charitable,  1215-1217. 

REGISTRATION  — 

ot  writing  as  proof  of  its  testamentary  character,  53. 
of  birth  to  show  age,  727. 

REJECTION  — 

of  words  and  clauses  which  are  repugnant,  485-487,  874. 

of  meaningless  words,  493,  889. 

incase  of  devise  over  on  death  "unmarried  and  without  issue,"  G33, 

634. 
of  the  words  "  what  remains  "  coming  after  fee,  945,  946. 

RELATIONS  — 
defined,  784. 

confined  to  statutory  next  of  kin,  785,  835. 
of  a  particular  name,  785. 
husband  and  wife  are  not,  785,  786. 
husband  or  wife  may  be  included  among,  by  reference  to  the  statute, 

785,  786. 
the  word  in  the  singular  number,  787,  788. 
for  benefit  of,  when  poor  or  worthy,  788,  789. 
powers  of  appointment  and  selection  among,  790,  791. 
when  meant  by  "  family,"  782,  784. 
(see  Child  en  Ventre  sa  Mere.) 

RELATIVE  — 

gift  to,  does  not  lapse,  though  not  to  him  nominatim,  440. 
defined,  as  used  in  statute,  to  prevent  lapse,  453. 

RELEASE  — 

of  debt,  direction  to  execute.  443. 
of  powers  of  appointment,  1180. 

RELIGION  — 

bequests  for,  validity  of,  1199,  1200. 

form  of,  not  material  to  the  validity  of  the  bequest,  1200. 

bequests  to  sustain  missionaries  and  circulate  literature  to  propagate, 
1200,  1201. 

equity  will  not  control  discretion  of  a  trustee  who  has  power  to  dis- 
tribute bequest  for,  1201. 

bequests  for  masses  void  in  England.  1202. 

provision  for  masses  is  valid  in  tlie  United  States,  1202,  1203. 

duty  to  provide  for  poor  is  a  part  of,  1207,  1208. 

gifts  for,  to  be  distributed  by  trustee,  1243-1250. 

gifts  for  the  support  of,  are  not  invalid  as  superstitious  in  America, 
1256-1261. 

invalidity  of  devises  to  Roman  Catholic  churches,  1259. 

maintenance  of  public  cemetery,  1222. 

RELIGIOUS  CORPORATION  — 

member  of,  as  an  attesting  witness,  265. 

REMAINDER  — 

power  to  devise,  56,  62,  63,  1289. 

whether  vested  or  contingent,  465-468,  1291-1321. 

to  survivors,  471. 

to  a  class,  when  vested,  477,  1304-1.307. 

to  children  of  members  of  class  by  substitution  for  parents,  478,  482. 

by  implication,  by  devise  over  on  death  of  life  tenants,  624. 

by  implication  on  remarriage,  625,  1293,  1294. 

dependent  on  indefinite  failure  of  issue,  625. 

to  children  as  joint  tenants,  704. 


INDEX.  14^'3 

References  are  to  pages. 

REMAINDER  (continued)  — 

to  children  by  name,  720.  721. 

to  children  "now  living"  or  "surviving."  728,  729. 

to  children  as  a  class  simpiiciter,  731,  734. 

when  vested,  731-734. 

to  children  of  A.  after  death  of  B.,  733,  734. 

to  child  en  ventre,  is  valid,  747. 

to  children  after  life  estate  in  parent  under  rule  in  Wild's  case,  773, 

774. 
to  heirs,  vrhen  class  ascertained,  810,  814,  1291-1293. 
to  heirs  after  life  estate  in  heir,  815. 
to  heirs  after  life  estate  in  sole  heir,  81G. 
to  next  of  kin,  842,  843. 

gift  of,  to  legal  or  personal  representatives,  849,  850. 
to  issue,  effect  of  added  words  of  inheritance,  912,  913. 
to  issue  in  indeterminate  language,  91(5. 
to  issue,  but  if  one  child,  tlien  to  him,  921. 
to  issue,  provided  they  attain  majoritj',  922. 
to  issue  share  and  share  alike,  923. 

tenant  of,  may  elect  as  against  life  tenant,  996,  1033.  1034. 
tenant  of,  not  bound  b}'^  action  of  trustee  of  life  estate,  1114. 
when  life  estate  is  legal  and  remainder  equitable,  rule  in  Shelly's  case 

does  not  apply,  894,  S95,  995,  n. 
to  children.  Shelly's  case  does  not  apply  to.  870. 
cannot  begin  in  the  future  or  be  limited  after  a  fee,  1344. 
(see  AccELERATiox;  Life  Te.naxt;  Peupetuities;  Vestlng.) 

REMARRIAGE  — 

acquiring  domicile  by,  43. 
remainder  on,  625. 
conditions  against,  663-667. 

REMEDY  — 

of  party  under  breach  of  contract  to  devise,  388,  389. 

REMOTENESS  — 

in  creation  of  a  power,  1181. 

in  the  execution  of  a  power,  1181. 

of  devise  over  on  an  indefinite  failure  of  issue,  1276-1278. 

rule  of,  as  applied  to  contingent  remainders,  1287-1290,  1344-1346. 

(see  Peupetuities;  Vesting.) 

REMOVAL— 

of  furniture  or  personal  property  from  house,  eflfect  of  on  bequest  of, 
427,  428,  561,  562. 

REMOVAL  OF  TRUSTEE  — 

by  agreement  of  all  beneficiaries,  1130,  n. 

if  insolvent,  insane  or  neglectful,  1131. 

may  take  place  when  he  cannot  agree  with  beneficiaries,  1131, 

burden  of  proof  on  party  demanding,  1131. 

RENT  — 

anciently  payable  in  farm  |)roduce,  407. 
of  land,  goes  to  tlie  devi.see.  567. 

RENT  ClIARtJE  — 

defined  and  distinguished  fmm  aiiniiity,  1079. 

may  be  a  lien  on  land  in  hamls  <jf  stranger,  1079,  1080. 

RENTS  AND  PROFITS  — 

devise  of.  giv.-M  title  to  tli<-  land.  !•>'.»  '.•51. 
direction  tliut  devisee  Hball  not  enjoy.  641),  O.'iO. 
direction  to  pay,  mukcH  use  active,  10'J6. 


14S4  INDEX. 

References  are  to  pages. 

RENUNCIATION  — 

of  dower,  liow  made,  1053,  1053. 

of  the  executor,  10,  11. 

of  trust  by  a  trustee  should  be  promptly  made,  1125, 

of  trustee,  new  trustee  may  be  appointed,  1129. 

REPAIRS  — 

paid  by  life  tenant,  587. 

REPETITION  — 

of  legacies,  568-574. 

REPRESENTATION  — 

use  of  words  of,  in  preventing  lapse,  445,  446. 

REPUBLICATION— 

"by  codicil,  11. 

may  prevent  failure  of  legacy  to  witness,  287. 
effect  of,  upon  satisfied  or  adeemed  legacy,  606, 
(see  Re-execution.) 

REPUGNANCY  — 

of  words  directing  equal  division  among  heirs,  871,  872. 
of  conditions,  649,  650. 

REPUGNANT  CLAUSES  — 
latter  of,  prevails,  485-487. 

clear  gift  not  cut  down  by  vague  words,  487,  490,  945-947. 
must  be  reconciled  if  possible,  341,  342. 
(see  Rejection.) 

REPUTATION  — 

as  proof  that  testator  meant  to  benefit  illegitimate  child,  756,  766, 

REQUEST  — 

to  attest  a  nuncupative  will,  236. 

by  testator  that  witness  shall  attest  his  will,  261,  262. 

by  witness  that  his  name  be  signed  for  him,  273. 

no  constructive  conversion  when  sale  is  to  be  made  upon,  969,  970. 

to  sell,  must  be  made  by  a  majority,  971. 

RESIDENCE  — 

devise  of,  described  by  its  occupation,  409. 

conditions  requiring,  642,  675. 

what  constitutes,  676. 

of  minor  legatees  to  fulfill  condition,  677. 

requirement  of,  excused  when  illegal,  647. 

(see  Domicile.) 

RESIDUARY  CLAUSE  — 

passes  after-acquired  land,  77,  78. 

may  include  after-acquired  personal  property,  65. 

does  not  take  in  lapsed  devise  at  common  law,  449,  450. 

by  statute  includes  lapse  and  void  devises,  450. 

includes  lapsed  legacies,  450. 

intestacy  in  case  of  lapse  in  a  disposition  made  by,  451,  452. 

of  particular  fund,  451. 

enlargement  of  meaning  of,  617. 

omission  of,  as  extending  effect  of  clause  of  introduction,  933. 

satisfaction  of,  by  portion,  597. 

resulting  trust  in,  on  failure  of  disposition,  627,  628. 

RESTRAINT  OF  MARRIAGE  (see  Maeriaqe,  Conditions  Restraining> 


INDEX.  1485 

References  are  to  pages. 

RESULTING  TRUST  — 

a  possibility  of,  may  be  devised,  59. 
for  heirs  where  secret  trust  is  invalid.  222-224 
in  heir  on  failure  of  devise  in  trust,  02.'5-627. 
in  land  directed  to  be  sold,  026,  987-990. 
in  land  sold  to  pay  debts.  020. 

none  in  land  devised  charged  witii  payment  of  debts,  627,  628. 
for  heir  or  next  of  kin  on  failure  of  the  purpose  of  a  conversion,  987- 
990,  1113. 

RETROACTIVE  STATUTES  — 

regulating  execution  and  revocation,  23. 

RETURN  OF  LEGATEE  — 

may  be  condition  precedent  to  vesting  of  legacies,  042,  069. 
what  constitutes,  069. 
notice  to  legatees,  609. 
period  allowed  for,  070. 

REVERSION  — 

expectant  on  estate  tail,  may  be  devised,  59,  61,  63, 

REVIVAL  OF  WILLS  — 

how  made  when  will  revoked,  346,  366. 

in  case  of  express  revocation.  306. 

when  presumption  is  created,  366. 

none  by  statute,  unless  will  is  re-executed,  367. 

REVOCATION  — 

of  gift  causa  mortis,  1060. 

of  donation  causa  mortis  implied  from  survival  of  donor,  1068. 

REVOCATION  OF  WILLS  — 

may  be  express  or  constructive,  302. 

when  implied,  303. 

the  intention  and  the  act  must  coincide,  303,  305. 

by  blind  testator,  305. 

by  destruction,  tearing,  burning,  300. 

testator  must  have  testamentary  capacity,  307. 

unintentional  destruction  is  not.  308. 

incomplete  destruction  is  not,  309,  311. 

by  cancellation  or  obliteration,  315,  316. 

by  pencil  cancellations.  310. 

effect  of  erasing  testator's  signature  as,  317. 

presumption  of,  from  loss  or  disappearance,  317,  318. 

placing  among  waste  papers,  319. 

declarations  to  rebut  presumption  of,  319-321. 

by  woman's  marriage,  321-323. 

by  execution  of  power,  323.  324. 

of  a  man's  will  by  his  marriage,  324-327. 

by  birth  of  children,  327-330. 

what  provision  for  childi'en  prevents,  330-335. 

by  change  in  circumstances,  335. 

by  parol,  335,  336. 

Ijy  non-tHstamentary  writings,  336,  337. 

by  later  wills  and  codicils,  337-339. 

intention  to  revoke;  must  ai)i)ear,  339. 

by  c'odicil  partly  invalid,  310,  341. 

by  latir  will  making  inconsistent  disposition,  841-343. 

when  f:oti(lili(jnal.  311-310. 

founded  upon  mistaken  assumption  of  fact,  340,347. 

by  invalid  cunvcyance,  3IS,  349. 

revocation  of  apixjintment  of  executor,  310,  351. 

whiMC  several  undated  or  of  same  date,  351,  352. 

revocation  of  codicil,  351,  352. 


14SG  INDEX. 

References  are  to  pages. 

REVOCATION  OF  WILLS  (continued)  — 

not  by  clause  of  revocation  inserted  by  mistake,  353,  354. 

b}'  inconsistent  disposition,  354,  355. 

by  codicil  not  disposing  of  property.  355,  356 

when  executed  in  duplicate,  35(3,  357. 

not  implied  from  insanity  of  tiie  testator,  358. 

not  implied  from  adoption  of  a  cliild,  350,  360. 

not  implied  from  the  divorce  of  the  testator,  360,  361. 

by  subsequent  lost  wills,  361. 

effect  of  alterations,  302-365. 

presumption  as  to  time  of  alterations,  363-365. 

revival  of  revokeil  wills.  365-368. 

distinguished  from  ademption,  566,  567. 

joint  and  mutual  wills,  19,  20. 

of  personal  property  by  change  of  domicile,  31. 

of  prior  gift  by  inaccurate  statement.  631,  n. 

of  devise  to  heir  not  caused  by  a  false  statement  in  will  that  he  has 

been  disinherited,  631,  n. 
not  implied  from  inaccurate  description  of  amount  of  legacy  given,  632, 
none  by  mistaken  designation  of  prior  devisee,  631. 
absence  of  presumption  of,  indicating  freedom  from  undue  influence, 

190,  191. 
when  indicating  undue  influence,  190. 
of  devise  by  sale,  972-974. 
of  wills  executed  under  contract  to  devise,  390. 

REVOCATION  OF  ELECTION  — 

not  permitted  when  grounded  on  ignorance  of  law,  1013. 
by  widow  when  not  informed  of  riglits,  1014. 

allowed  when  procured  by  fraud,  accident  or  mistake,  1013,  1014. 
allowed  where  party  has  been  deprived  of  time  and  opportunity  to  ac- 
quire information,  1015. 
under  wiiat  circumstances  allowed  where  party  has  died,  1016. 
party  must  restore  what  he  has  taken,  1015,  n. 

RIGHT  HEIRS  — 
construed,  821. 

RIGHT  OF  ACTION  — 

may  be  maintained  against  executor  by  donee  causa  mortis,  1066, 1067. 

RIGHT  OF  ENTRY  — 

enforcible  by  ejectment,  640. 
accrues  on  breach  of  condition,  638. 
on  condition,  may  be  devised,  57-59,  61. 

RIGHT  OF  WAY  — 

by  necessity,  when  passing  by  devise  of  house,  405. 

ROMAN  LAW  — 

its  principles  applied  by  church  courts,  651. 

ROMAN  TESTAMENT  — 

compared  with  Anglo-Saxon  will,  3. 


SAILORS  (see  Soldiers  and  Sailors,  Nuncupative  Wills  of). 

SALE  — 

resulting  trust  in  case  of  sale  of  land  for  debts,  62.5,  626. 
of  land  may  show  intention  to  take  it  unconverted,  994. 
(see  Power  of  Sale.) 


INDEX.  1187 

References  are  to  pages. 

SALVATION  ARMY  — 

gift  to,  1242. 

SANITY  — 

presumption  of,  106-108. 

SATISFACTION  — 
defined,  589,  590. 

distinguished  from  election,  590,  591. 
distinguished  from  ademption,  591,  592. 
of  legacy  by  subsequent  portion,  593. 
may  he  pro  tanto,  592,  597. 
difference  in  legacy  and  portion.  598.  594,  597. 
by  gift  to  husband  of  legatee,  594,  595. 
legacy  and  portion  must  be  ejusdem  generis,  595. 
testator  in  loco  parentis,  596. 
of  residuaiy  legacy  by  portion,  597. 
•  none  where  advancement  precedes  will,  597,  598. 
expi'ess  directions  to  account  for  prior  advancements,  598,  599. 
of  marriage  portions  by  legacies,  599,  600. 
of  legacy  given  for  a  particular  purpose,  601. 
of  bequest  to  creditor,  601-603. 
of  legacy  to  wife  or  child  who  is  a  creditor,  604. 
of  legacy  to  debtor  of  testator,  605,  606. 
effect  of  republication  of  tlie  will,  606,  607. 
disposition  of  satisfied  legacies,  607. 
of  gift  causa  mortis  by  a  legacy,  1077. 

SCANDALOUS  MATTER  — 

may  be  erased  from  the  record  of  the  will,  510. 

SCHEDULE  — 

incorporated  in  will  by  reference,  381,  383. 

SCHOOLS  — 

validity  of  gifts  to  municipal  corporation  for,  97,  98. 
is  not  charitable  if  school  is  private,  1196. 

SCIENCE  — 

bequests  for  the  advanccmant  of,  valid  as  charitable  bequests,  1206, 
1213,  1220. 

SCINTILLA  JURIS  — 

the  doctrine  of,  defined,  1106. 

SEAL  — 

on  writing  as  evidence  that  it  is  not  a  will,  53,  247. 
tearing  off,  may  constitute  revocation,  312. 

SEARCH  — 

necessary  for  a  lost  will,  371,  372. 

SECONDARY  USES  — 
defined,  1107,  1108. 

SECOND  COUSINS  — 

included  in  gift  to  cousins,  805. 

SECOND  MORTGAGE  — 

power  of  trustee  to  invest  in,  117. 

SECRE(;Y  — 

of  execution  of  will  as  evidence  of  undue  influence,  186,  187. 

SECRET  TRUSTS  (see  TuusTS  KX  Mamcimcio). 

SEIZIN  — 

(laviHor  must  have,  at  common  law.  5(1,  57,  65. 
not  now  minimi  uiid<T  stat  iiti-s,  57.  5S, 
neccKsily  for,  tu  nujiport  cunlingtMit  use,  1100. 


l-iS8  INDEX, 

Keferences  are  to  pages. 

SELECTION  — 

of  articles  to  be  made  by  legatee,  1387. 

SENILE  DEMENTIA  — 

evidence  of  mental  condition  to  show,  145. 
uaay  cause  testamentary  incapacity,  10.3. 

SEPARATE  TRACTS  — 

of  land,  when  comprised  in  one  devise  of  a  farm,  409. 

SEPARATE  USE  TRUST  — 

husband  may  claim  curtesy,  unless  expressly  excepted,  1001,  10G3. 

SEPARATION  OF  HUSBAND  AND  WIFE  — 
conditions  promoting,  are  void,  681. 

provision  for  support  of  one  while  living  apart  from  the  otlier,  683. 
enables  latter  to  change  her  domicile,  43. 

SERVANT  — 

repetition  of  legacies  to,  571. 

living  with  or  in  employ  of  testator  does  not  include  temporary  help,  806. 

of  "  houseliold,"  does  not  include  gardeners  or  grooms,  806. 

''living  with  testator"  excludes  tliose  living  elsewhere,  806. 

reason  for  dismissal  of,  immaterial,  806,  807. 

SERVICES  — 

legacies  in  payment  of,  538. 

SEVERANCE  — 

words  of,  creale  tenancy  in  common,  701,  703. 

SHARE  — 

defined,  433,  1387. 

SHARES  — 

may  pass  under  bequest  of  money,  420. 

do  not  include  debentures,  432. 

do  not  pass  by  gift  of  all  property  in  a  liouse,  428. 

the  disposition  and  character  of  accruing,  475,  476. 

legatee  of,  may  elect  not  to  take  when  incumbered,  1028. 

SHELLY'S  CASE  — 

applied  to  estates  tail,  863. 

not  applicable  to  a  remainder  to  children,  870,  871,  886. 

applies  to  a  devise  to  "A.  for  life  and  remainder  to  his  issue,"  913,  916, 

917. 
not  applicable  to  a  devise  to  "  A.  and  his  issue,"  917. 
origin  and  history  of,  878-881. 

life  estate  and  remainder  must  be  created  by  the  same  instrument,  881. 
what  documents  constitute  the  one  instrument,  881,  883. 
not  applicable  to  executory  devises,  881,  882. 
under  powers  of  appointment,  882. 
the  intention  of  tiie  testator  as  affecting,  883-885. 

a  limitation  to  the  general  heirs  of  the  heirs  of  the  body,  874.  887-889. 
terms  in  which  heir  or  heirs  of  tlie  body  may  be  described,  889,  890. 
not  applicable  to  remainders  to  children,  891-893. 
as  applied  in  equity,  893. 
not  applicable  unless  estate  in  ancestor  and  in  heirs  are  both  legal  or 

both  equitable,  894,  895. 
not  applicable  to  executory  trusts,  896-901. 
in  the  United  States,  902. 
abolition  of,  by  statute,  903-906. 
applicable  to  ])ersonal  property,  906. 
the  general  effect  and  operation  of  the  rule  in,  906-908. 
not  applicable  to  remainder  to  issue  as  donee  may  appoint,  914. 
application  of,  whei-e  equal  division  directed  among  lieirs  of  the  body, 

871,  872,  886.  887.  892. 
applicable  to  active  trusts.  1098,  n. 


INDEX.  liS9 

References  are  to  pages. 

SHIFTING  CJSES  — 
defined,  1107, 1108. 

SHIPWRECK  — 

survivorship  in  death  in,  26-28. 

SIGNATURE  OF  TESTATOR  — 
inserted  in  body  of  will,  249. 
when  required  at  the  end  of  the  will,  249,  250. 
what  constitutes  the  end  of  the  will,  250,  851, 
on  last  of  several  sheets,  251. 
to  holographic  will,  15,  16.  252. 
may  be  made  by  mark,  25-1-256. 
made  by  guiding  his  hand,  256. 
made  for  testator  by  another,  256. 
what  constitutes,  257,  258. 

when  the  acknowledgment  of,  is  sufficient,  259,  860. 
in  lead  pencil,  248,  316. 
must  be  attached  before  attesting,  266. 
erasure  of,  as  a  revocation,  317. 
of  the  attesting  witnesses,  268-275,  292. 

SIGNS  — 

wills  made  in,  168,  176,  280,  282. 
request  to  witnesses  by,  261,  263. 

SILENCE  — 

of  devisee,  may  create  a  trust  ex  maleficio,  220. 
of  trustees,  may  imply  consent  to  marriage,  659. 

SISTERS  (see  Brothers  and  Sisters). 

SOCIAL  REFORM  — 

devises  for  the  purpose  of  effecting,  1214,  1315,  1217. 

SOCIETIES  — 

gifts  by  will  to,  when  unincorporated,  89,  102,  103. 

SOLDIERS  AND  SAILORS,  NUNCUPATIVE  WILLS  OF— 
regulated  by  statute  of  frauds,  242. 
not  valid  when  made  in  camp,  243. 
actual  service  and  being  at  sea  defined,  243. 
soldiers  and  sailors  defined,  243. 

SON  — 

as  a  word  of  limitation,  865. 

dying  witliout,  construed,  865. 

estate  in  tail  male  created  by,  805. 

limitation  to  eldest,  y06. 

rule  in  Shelly's  case  applies  to  a  remainder  to,  890. 

gift  to,  means  legitimate  son,  754,  701.  ^ 

SON-IN-LAW  — 

cannot  claim  under  devise  to  children,  716,  n. 
SOUND  MIND  (see  Trstamentary  Capacity). 
SPECIAL  OCCUPANT  — 

of  estate  ])er  autre  vie,  68. 
SPECIAL  POWER  — 

to  ap|)oint  among  issue,  014,  915. 

of  apj>oiiitment  by  will,  944-916. 

deflnrj.l,  1103. 

if  imperative,  may  be  executed  in  equity,  1160. 

iimst  bf  restrained  within  limits  indicated  liy  donor,  1170. 

to  deviHf,  may  be  exfciitcd  by  devisi;  in  trust,  1177. 

perpetuity  may  be  created  by,  more  readily  than  by  a  general  power, 
11 H^ 

(see  also  Power  of  Ai'I'oi.ntme.n'T.) 


1490  INDEX. 

References  are  to  pages. 

SPECIFIC  DEVISE  — 

every  gift  of  land  is,  567. 

ademption  of,  by  parting  with  the  land,  5G7. 

SPECIFIC  LEGACY  — 

must  be  exonerated  from  incumbrances,  538. 

when  in  pledge  must  be  redeemed  by  executor,  538. 

of  leasehold,  5'6d. 

of  shares,  is  liable  to  calls,  539,  540. 

defined,  557,  565. 

a  sum  of  money  in  bag,  box,  etc.,  is,  557. 

distinguished  from  demonstrative,  557. 

of  stocks,  bonds,  debts  and  securities,  558. 

reference  to  ownership  as  peculiar  to,  558. 

legacy  of  "stock  out  of  stock,"  559. 

incidents  of,  559. 

carries  all  interest  and  other  accessions,  560,  561. 

the  ademption  of  a,  562-565. 

of  securities  to  life  tenant,  585,  586. 

SPECIFIC  PERFORMANCE  — 

of  promise  to  hold  property  devised  in  trust,  219,  220. 
of  contract  to  devise,  887,  388. 

SPENDTHRIFT  TRUST  — 

definition  and  validity  of,  692-694 

SPIRITUALISM  — 

belief  in,  not  delusion,  128-130. 

evidence  of,  is  relevant,  129. 

its  bearing  on  undue  influence,  130. 

SPORT  — 

gifts  for  the  encouragement  of,  are  not  valid  as  charities,  1198. 

SPRINGING  USES  — 
defined,  1107. 

STABLES  — 

may  pass  with  devise  of  house,  messuage  or  premises,  403-405. 

STATE  — 

validity  of  charitable  bequests  to  the,  1213, 1214. 

STATUTE  — 

effect  of,  when  enacted  after  the  death  of  the  testator,  25,  26. 

applicable  to  after-acquired  real  property,  26. 

mode  of  proof  of,  36. 

preventing  lapse  applies  to  class  gifts,  440. 

abolishing  lapse,  construction  and  effect  of,  452-455. 

retroactive  effect  of,  upon  joint  tenancy,  706. 

regulating  the  adoption  of  children,  717,  718. 

STATUTE  OF  DISTRIBUTION  — 

reference  to,  as  affecting  construction  of  words  "next  of  kin,"  837-839, 
845. 

STATUTE  OF  ELIZABETH—  ^"  ^' 

.jurisdiction  of  common  law  over  charities  prior  to,  1186. 

jurisdiction  of  equity  prior  to,  1186-1189. 

has  been  expressly  repealed  in  some  states,  1191,  1195,  n. 

jurisdiction  of  equity  in  the  United  States  over  charities  aside  from 

the,  1191-1194. 
objects  of  the,  1191,  n. 
in  what  states  re-enacted,  1194. 
devise  for  the  poor  valid  under,  1207. 
miscellaneous  charities  valid  under,  1219. 


IXDEX,  1491 

References  are  to  pages. 

STATUTE  OF  FRAUDS  — 

not  applied  to  trusts  ex  maleficio,  219. 

requires  wills  to  be  in  writing.  246. 

regulating  nuncupative  wills,  236,  241. 

publication  of  will  not  required  by,  278. 

requires  revocation  to  be  in  writing,  304,  335-337 

requires  revoking  will  to  be  attested,  336. 

provisions  of,  applicable  to  real  and  personal  property,  336,  338» 

writing  required  to  execute  a  power  over  real  property,  1165. 

requires  contract  to  devise  to  be  written,  389,  390. 

contracts  to  bequeath  are  not  under,  389. 

effect  of  part  performance,  389. 

STATUTE  OF  USES  — 

origin  and  construction  of,  1095. 

strictly  construed.  1096. 

executes  the  use,  1096. 

not  applicable  to  uses  in  leaseholds,  1096. 

active  uses  not  executed,  1096-1099. 

uses  for  married  women  not  executed,  1100. 

use  on  a  use  not  executed,  1103. 

in  the  United  States,  1103,  1104. 

effect  on  future  uses,  1104-1106. 

application  of,  to  modern  trusts,  1108,  1109. 

trust  estate  executed  in  remainder  by,  1114. 

STEP-CHILDREN  — 

excluded  from  provision  for  children,  716. 
legacy  to,  as  a  class,  716. 

may  be  included  in  gift  to  children  when  testator  has  no  children  of 
his  own,  716. 

STEP-DAUGHTER  — 

gift  to,  800. 

STIPULATION  — 

lost  will  not  admitted  to  probate  upon,  376. 

STOCK  — 

legacies  of,  are  specific,  558-560. 

legacy  of,  when  adeemed,  564.  \ 

ademption  by  sale,  564 

ademption  of  legacy  of,  not  by  mere  change  in  form,  565, 

STOCK  IN  TRADE- 

does  not  pass  under  bequest  of  furniture,  424. 

STOCK  ON  FARM  — 

includes  domestic  animals,  but  not  crops,  tools,  implements,  eta,  412f, 
425. 

STORE  — 

occupation  of,  410. 

STRANGERS  — 

alterations  by,  363-365. 

STUDENT  — 

domicile  of,  42. 

condition  that  legatee  shall  become  a,  680. 

SUBJECT  TO  MORTGAGE  — 
defined,  528,  529. 

SUBSCRIPTION  — 

by  tostator  reriuired  to  holographic  will.  Id. 
when  ro(iuirL'il,  21'J-254. 
of  altcHting  witnesses,  205. 
on  shares,  540. 


1102  INDEX. 

References  are  to  pages. 

SUBSEQUENT  — 

meaning  of,  applied  to  conditions,  641-644. 

SUBSTITUTION  — 

of  word  "  or  "  for  "and,"  633,  634. 
"and"  for  "or,"  438,  633,  634. 

SUBSTITUTIONAL  GIFTS  — 

to  prevent  lapse  in  case  of  death,  476,  827. 

introduced  by  word  "or,"  477. 

when  the  vesting  is  postponed,  477. 

to  classes  and  to  the  children  of  deceased  members  of  the  class,  478. 

479,  1312,  n. 
when  members  of  the  class  are  dead  at  the  date  of  the  execution,  479- 

481. 
future  death  in  contemplation,  483,  484. 
contingent  character  of,  482,  483. 
to  personal  representatives,  848,  850. 

SUCCESSION  — 

words  of,  to  prevent  lapse,  445,  446. 

SUICIDE  — 

as  evidence  of  insanity,  124,  126,  150. 

SUNDAY  SCHOOL  LIBRARY  — 

gift  to,  may  be  valid  as  a  public  charity,  1196,  1230,  1243. 

SUPERSTITIOUS  USES  — 

in  England  gifts  for  masses  are  void  as  for,  1202,  1259. 

doctrine  of,  not  recognized  in  the  United  States,  1203,  1259,  1260. 

SUPPLYING  — 

language  to  the  will,  498,  500,  501. 

SUPPORT  — 

provisions  for,  429,  430,  547,  548. 

of  legatee,  when  a  condition,  548,  549. 

personal  liability  of  devisee  for,  548,  549. 

of  legatee  charged  upon  land,  550,  551. 

residence,  when  requisite,  550,  551. 

what  constitutes  sufficient.  550,  551,  1887. 

interest  on  legacies  for,  578,  579. 

of  legatee  excused  by  his  death,  647. 

of  wife  living  away  from  her  husband,  681,  683. 

life  estate  with  power  of  sale  for,  940-944. 

annuities  for,  do  not  end  with  minority,  1081. 

trust  for,  is  active,  1096. 

SURNAME  (see  Name). 

SURPLUS  — 

legacy  of,  after  a  void  bequest,  1223,  n.,  1392. 

^SURVIVORSHIP  — 

presumption  of,  in  case  of  death  by  common  disaster,  26,  27. 

as  between  joint  tenants  prevents  devise  of,  65. 

in  joint  tenancy  prevents  lapse,  438,  700. 

difficulty  of  framing  clause  of,  456. 

"in  case  of  death  "  means  death  in  life-time  of  testator,  457-459. 

until  payment  of  legacy,  459-462. 

in  connection  with  special  contingency,  462-465. 

death  without  issue,  466-469,  1277. 

period  of,  in  legacies  to  individuals  or  classes,  469. 

when  the  vesting  is  postponed,  470-472. 

during  life  of  particular  tenant,  472. 

meaning  of  the  word  "survivors,"  472,  473. 

disposition  of  shares  accruing  by,  474,  475. 


INDEX.  1403- 

References  are  to  pages. 

SURVIVORSHIP  (continued)  — 

among  joint  tenants,  abolished  by  statute,  705,  706. 

words  of,  create  joint  tenancy,  706. 

among  members  of  a  class  who  take  a  remainder,  439,  704,  729,  73t, 

734,  1305,  1306. 
gifts  to  persons  "then  living."  1806. 

death  without  issue  coupled  with  a  limitation  in,  1277,  1278. 
among  children  who  take  as  a  class,  in  remainder,  729,  731,  734,  1305w 
implied,  among  life  tenants,  624. 

SUSPICION  — 

of  wife,  is  not  insane  delusion,  127,  128. 

T. 
TAIL  (see  Estates  Tail). 

TAXES  — 

paid  by  life  tenant,  587. 

TEACHERS  — 

bequests  to  city  to  pay  salary  of,  98. 

TEARING  — 

revocation  by,  304. 

by  testator  not  having  capacity,  307. 

by  accident  or  mistake,  308. 

cutting  will  may  revoke,  312. 

of  will,  effect  of  when  incomplete,  310. 

TEMPORARY  INSANITY  — 

from  delirium  tremens,  151-153. 

TENxiNCY  IN  COMMON  — 

promise  of  one,  does  not  bind  others,  221. 

power  to  devise  estates  held  in,  64.  65. 

legacies  to  several  in,  lapse  on  death  of  one,  437,  433. 

survivorship  expressly  among,  469. 

distinguished  from  joint  tenancy,  699. 

four  unities  in,  700. 

partition  among,  700. 

language  creating,  at  common  law,  700,  701,  702. 

created  by  implication,  702. 

favored  in  equity,  702. 

created  by  words  indicating  division,  701,  703. 

in  an  estate  tail,  703. 

of  a  devise  in  fee  of  same  land,  703. 

in  class  gifts,  469,  704.  871,  872. 

statutes  regulating.  705. 

presumption  of,  under  statutes,  705. 

direction  that  lieirs  of  the  body  shall  take  in,  871,  872. 

effect  of,  in  case  of  remainder  to  issue,  914,  915. 

minority  not  bound  by  election  by  tenants,  1034. 

TENANT  IN  TAIL  — 

must  elect  between  inconsistent  benefits,  1002,  n. 
may  elect  to  take  property  unconverted,  997 

TENDER  — 

of  legacy  to  stop  interest,  574 

TENEMENT  — 

messuage  synonymous  with,  402,  403. 
includes  more  than  land.  403. 
includes  everytliing  whicli  may  be  holdcn,  403. 
when  tlie  word  means  a  dwelling,  403. 


149J:  INDEX. 

References  are  to  pages. 

TESTAMENTARY  CAPACITY  — 
burden  of  proof,  106,  107. 
degree  of.  required,  111-114. 
ability  to  carrj'  on  business,  113-116. 
insanity  destroys,  117,  118. 

delusions,  119,  120,  125.  ^ 

of  those  who  are  eccentric,  120-125. 
as  influenced  by  mistake  and  prejudice,  126.  127. 
as  influenced  by  suspicion  and  jealousy,  127,  128. 
belief  in  spiritualism  and  witchcraft,  129,  130. 
during  lucid  interval,  131-133. 
burden  of  proving  lucid  interval,  133-137. 
relevancy  of  evidence,  137,  138. 
expert  evidence  to  show,  138-140. 
non-expert  evidence  to  sliow,  140-142. 
insanity  in  the  family  of  the  testator,  144. 

evidence  of  past  and  present  mental  condition  to  prove,  144,  145. 
unnatural  discrimination  as  evidence  of  lack  of,  145-148. 
declarations  of  the  testator  to  show,  148,  149. 
suicide  of  the  testator,  150. 
of  drunkards,  150-156. 

of  persons  addicted  to  the  use  of  drugs,  156,  157. 
of  epileptics,  157. 
of  idiots  and  imbeciles,  157-159. 
of  aged  persons,  160-165. 
of  blind  persons,  166-168. 
of  deaf  mutes  and  illiterate  persons,  168-170. 
of  infants,  170,  171. 
of  married  women,  171-174 
of  convicts,  174.  175. 
of  paralytics,  176,  177. 
necessity  for,  to  revoke,  306,  307. 

always  present  where  undue  influence  is  proved,  183. 
uecessarj'  to  make  nuncupative  will,  239. 
attesting  witness  who  attacks,  may  be  impeached,  293. 

TESTAMENTARY  POWER  — 
origin  and  history  of,  1-6. 
control  of,  by  legislature,  23. 

THELLUSON  WILL  — 
facts  of,  1379,  n. 

TILDEN'S  WILL  — 
explained,  1235,  n. 

TIMBER  — 

passes  as  a  part  of  the  land,  413. 

TIME  — 

from  which  will  speaks,  21,  22. 

for  performance  of  condition,  645,  646. 

for  performance  of  condition  that  A.  shall  marry  B.,  655. 

discretion  as  to,  may  prevent  conversion,  963-965. 

of  conversion,  is  death  of  the  testator,  965-967. 

of  sale  dependent  on  consent,  966. 

within  which  an  election  must  be  made,  1032,  1053. 

«T0  BE  BEGOTTEN"  — 
construed.  735. 

TOWN  HALL  — 

validity  of  bequest  to  purcliase  and  maintain,  98. 


INDEX.  1495 

References  are  to  pages. 

TRANSPOSITION  — 

of  words  and  clauses,  495. 

allowed  to  reach  intention,  496. 

parol  evidence  not  competent  to  show  necessity  for,  496. 

language  need  not  be  meaningless  or  contradictory,  497. 

TREASON  — 

land  enfeoffed  not  forfeited  for,  1094* 

TREATIES  — 

permit  aliens  to  devise,  88. 

TRUST  ESTATES  — 
may  be  devised,  61. 

municipal  corporation  cannot  be  trustee  of  private  or  religious,  97. 
lands  in,  for  payment  of  debts  administered  in  equity,  514. 
in  equity  on  breach  of  contract  to  devise.  387. 
to  protect  fund  from  insolvency  of  beneficiary,  693. 
rule  in  Shelly's  case  applicable  to,  895. 
distinguished  from  estate  upon  condition,  640. 
remedy  is  in  equity  to  enforce,  640. 
early  history  of,  1092. 

jurisdiction  of  chancery  to  enforce,  608-610,  640,  1093. 
the  statute  of  uses,  1095. 
in  leasehold  lands.  1096. 

when  active  are  not  executed  by  the  statute,  1096-1100. 
for  married  woman  not  executed,  1100-1103. 
use  upon  a  use  not  executed,  llOo. 
statute  of  uses  in  the  United  States,  1103,  1104 
future  and  executory  uses,  1104-1100. 
shiftmg,  springing  and  contingent  uses,  1106. 
in  modern  times,  1108. 

statutes  regulating,  in  the  United  States,  1110,  1111. 
language  by  which  created,  1111. 
for  sale  of  land,  1115. 

by  implication  by  direction  that  land  shall  be  sold,  1111,  1115. 
distinguished  from  naked  power,  1116. 
devise  of  land  in,  to  executor  to  sell,  1118-1120. 
distinguished  from  use,  1109. 
subject  to  common-law  rules,  1109. 
estate  in,  may  be  aliened  by  deed,  1109. 
(see  Resultixg  Trust;  Power  of  Appointment.) 

TRUSTEE  — 

revocation  of  appointment  of,  349,  350. 

competency  as  an  attesting  witness,  282,  283. 

may  ap|)ly  for  construction  of  a  will.  609,  6l0. 

rnay  withhold  consent  to  marriage.  658. 

may  not  withdraw  consent  given,  658. 

consent  may  be  presumed,  659. 

need  not  give  consent  in  writing,  659. 

his  consent  may  be  dispensed  with,  660. 

the  consent  of  a  majority  of,  661. 

direction  that  legatee  siiall  not  interfere  in  management  by,  674. 

benchcial  gifts  to,  857-H59. 

equity  will  not  contnji  discretion  of,  1201. 

his  duties  in  relation  to  active  uses,  1(U)6-1099. 

to  convey  land  is  a  |)assive  trustee,  109.8. 

having  any  duty  to  pirfonn  is  an  active  trustee,  1099. 

han  leg.il  estatf  undi-r  statute,  lllU. 

beneliciary  cannot  sue,  1110. 

hi.s  power  of  alienation,  1 10'.). 

when  ap|iointed  by  implication,  1111. 

his  iHtat'-  may  he  a  fee  witlif>ut  wurds  of  inheritance,  1112,  1 113. 

express  life  interest  in,  not  inlargeil  |»y  ini|)li(iition,  1112. 


1496  INDEX. 

References  are  to  pages. 

TRUSTEE  (continued)  — 

when  in  fee,  resulting  trust  may  ensue,  1114. 

remainderman  not  bound  by  actions  of,  1114. 

power  of  equity  to  appoint,  1112. 

power  of,  to  sell  trust  propert}%  1115-1117. 

right  of,  to  collect  rents  and  profits,  1115,  1116. 

devisee  takes  land  subject  to  power  of  sale  in,  1117. 

when  power  of  sale  in,  arises  from  implication,  1119. 

cannot  be  compelled  to  accept,  1135. 

refusal  or  resignation  of.  will  not  affect  the  trust,  1125. 

lapse  of  time  does  not  release  him  from  liability,  1125. 

maj'  be  estopped  from  denying  title  of  the  cestui  que  trust,  1126,  n. 

power  of  equity  to  appoint  new,  1126. 

on  death  of,  the  legal  title  vests  in  his  heirs,  1126. 

interest  of,  may  pass  under  a  general  devise,  1126. 

circumstances  rebutting  the  presumption  tl:at  the  estate  of,  passes 

under  a  general  devise,  1126,  1127. 
whether  discretionary  powers  of,  descend  to  heirs  or  devisees,  1123, 

1124,  1126.  1127.  1129. 
rule  in  New  York  as  to  appointment  of  a  new  trustee,  1129.   . 
mandatory  powers  of.  may  pass  to  successor,  1130. 
removal  of,  may  be  directed  when  necessary  for  the  interest  of  the 

beneficiaries,  1131. 
the  merger  of  the  estate,  1132,  1133. 
is  in  law  legal  owner.  1133. 
must  be  made  a  party  to  actions.  1133. 

his  duty  to  collect  and  protect  all  the  property  in  the  trust,  1134. 
powers  of,  as  to  disposition  of  trust  money,  1135. 
power  to  pay  debts,  1137. 

his  liability  for  the  actions  of  his  co-trustee,  1138. 
cannot  purchase  trust  property,  1139. 
cannot  delegate  a  discretionary  power,  1124. 
may  ratify  power  exercised  by  co-trustee,  1124,  1125. 
power  conferred  upon,  when  may  be  exercised  by  associate,  1124, 1127- 

1129. 
power  of  equity  to  appoint  in  case  of  charity,  1236. 
'  may  be  appointed  where  money  is  given  to  non-existent  corporation, 

1236-1243. 
application  to  court  to  appoint  must  be  made  by  person  interested, 

1237. 
must  exercise  care  in  investing  funds,  1143. 
may  not  invest  in  personal  securities,  1144. 
may  invest  in  government  bonds  and  mortgages,  1144,  1146. 
may  have  express  power  to  loan  on  personal  security,  1145. 
measure  of  care  in  loaning  money  on  mortgage,  1146. 
not  responsible  for  diminution  of  premium,  1147. 

purchaser  from,  must  see  to  application  of  purchase-money,  1148, 1149. 
court  of  equity  will  execute  a  discretionary  power  in  a,  1171,  1172. 
measure  of  liability  when  he  mingles  trust  money  with  his  own,  1335, 

1136. 
(see  Power  of  Appointment.) 

TRUSTS  EX  MALEFICIO  — 
by  promise  of  legatee,  218. 
specific  performance,  218,  219. 
statute  of  frauds  not  applicable  to,  219. 
actions  by  beneficiary  which  create,  220. 
created  by  statement  of  one  of  several,  221. 
may  be  raised  by  parol  evidence,  218-221. 
resulting  trust  for  heirs,  222-224. 
none  where  promise  without  consideration,  223. 
where  testator  is  murdered  by  the  beneficiary,  224. 

TYPEWRITING  — 
will  drawn  in,  247. 


INDEX.  149  T 

References  are  to  pages., 

u. 

UNATTACHED  WRITINGS  (see  Incorporation  op  WRiTiNas). 

UNCERTAINTY  — 

of  gift  to  "family,"  778-780. 

of  gift  to  "poor  relations,"'  788,  789,  1309,  1213. 

of  bequest  to  "  worthy  "  next  of  kin,  840. 

of  bequest  to  next  of  kin  excluding  person  who  is  sole  next  of  kin, 

841. 
degree  of  verbal  certainty  required,  1383-1385, 
conjecture  not  permitted  to  remove,  1386. 
in  amount  or  quantity,  1386,  1387. 

in  direction  to  support  or  educate  a  legatee,  1387,  1388. 
in  direction  to  pay  "same  amount,"  1388. 
of  beneficiary,  1389,  1390. 
in  gift  of  "  wliat  may  remain,"  1393. 
in  devise  to  be  taken  in  succession,  1394. 
parol  evidence  to  remove,  1395-1409. 

UNCHASTITY  — 

mistaken  belief  in  veife's  unchastity  is  not  delusion,  127, 128. 

UNDUE  INFLUENCE  — 

exerted  on  morphine  user,  155. 

of  priest  or  other  religious  adviser,  210,  211. 

of  wife,  211-313. 

of  mistress,  213-315. 

fraud  equivalent  to,  215-217. 

must  overcome  will  of  the  testator,  179. 

facts  which  constitute,  181,  183. 

mental  condition  of  the  testator  is  relevant  to  show,  183. 

existence  of,  implies  capacity,  183. 

burden  of  proof,  184, 

must  exist  at  the  time  of  the  execution  of  the  will,  184,  185. 

not  presumed  from  mere  opportunity,  185,  186. 

circumstances  which  are  relevant  to  show,  181,  187,  188. 

secrecy  of  the  execution  may  indicate,  187. 

presumption  against,  from  non-revocation.  190. 

alteration  of  existing  will  may  indicate,  190,  191. 

unreasonable  will,  evidence  of,  191. 

evidence  to  rebut  presumption  of,  193-195. 

inferred  from  fact  of  will  being  drawn  by  legatee,  194-197. 

relevancy  of  illness  or  weakness  to  show,  198-200. 

inferred  from  habitual  drunkenness.  200. 

knowledge  of  tlie  contents  of  the  will,  200-203. 

in  case  the  testator  is  unacquainted  with  the  language  in  which  the 
will  is  written,  203.  204. 

flattery,  persuasion  and  importunity  do  not  constitute,  205,  206. 

confidential  relations  between  the  testator  and  the  beneliciary  as  in- 
dicating, 200-209. 

will  not  affected  by,  admitted  to  probate,  223. 

declarations  of  tesUitor  to  prove  or  disprove,  225-227. 

declaratifjiis  of  legatee  or  executor  to  show,  228-330, 

charitable  gifts  procured  by,  1250,  1257. 

UNEQUAL  DISTRIBUTION  — 

not  evidence  <>(  incapacity,  145-148. 
as  evidence  of  undue  influence,  191-193. 
evidence  to  exi)lain,  193, 

UNGRAMMATICAL  LANGUAGE  — 

may  bo  corrected,  499,  500. 


IttOS  INDEX. 

Beferences  are  to  pages. 

UNINCORPORATED  ASSOCIATION  — 

validity  of  charitable  gifts  to,  102,  1199.  1200,  1230. 

trustee  appointed  by  court  for,  holds  legal  title  for  purposes  of  the, 

1237,  1242. 
gifts  to,  invalid  at  common  law,  but  sustained  in  equity,  1238-1242. 
rule  in  the  United  States  as  to  gifts  to,  1242. 
gifts  to  inhabitants  of  unincorporated  community,  1241-1243. 
devise  to,  may  create  a  perpetuity,  1361-1363. 

UNITY  — 

of  possession,  title,  etc.,  699,  700. 

^'  UNMARRIED  "— 

as  used  in  a  statute,  defined,  323. 

means  never  having  been  married,  633. 

may  mean  not  having  or  not  leaving  a  husband  or  wife,  633,  634. 

meaning  of  death  unmarried,  633. 

rejecting  the  word,  633. 

construed,  839,  n. 

UNREASONABLE  DISPOSITION  — 

of  property,  relevancy  of,  145,  146,  147,  148. 

USE  — 

may  be  devised,  61,  62. 

defined,  1108. 

gift  of,  carries  the  land  itself,  951. 

Y. 

VALIDITY  — 

of  contracts  to  devise,  386,  387. 

VALUE  OF  ESTATE  — 

revocation  not  implied  from  increase  in,  335. 

VENDEE  — 

devise  by,  of  land  contracted  to  be  purchased,  974. 

executor  of,  must  pay  purchase-money,  974. 

executor  of,  not  liable  if  contract  was  not  binding,  975,  976. 

VERACITY  — 

of  attesting  witness,  not  conclusive,  291-293. 

VESTED  REMAINDERS  (see  Vesting;  Remainders). 

VESTING  — 

of  legacy,  may  prevent  lapse,  437,  449. 

not  defeated  by  delay  in  payment  or  receipt  of  legacy,  459-463,  722- 

725.  1323. 
may  cause  words  referring  to  death  to  mean  in  life  of  testator,  458. 
at  majority,  722-725,  1315-1321. 
at  majority  of  youngest  child,  725,  726. 
of  annuities,  1082. 

remainder  must  vest  at  end  of  particular  estate,  1340-1342. 
definition  and  classification  of  contingent  remainders,  1285,  1286,  1341. 
contingent  remainder  destroyed  by  destruction  of  precedent  estate, 

1287. 
the  perpetuity  created  by  a  contingent  remainder,  1287-1290. 
the  assignability  of  contingent  estates,  1289. 
the  happening  of  the  contingent  events.  1289-1291. 
contingent  remainders  to  heirs,  1291,  1292. 
contingent  estates  which  depend  upon  the  remarriage  of  a  life  tenant, 

1293,  1294. 
remainders  dependent  upon  the  death  of  a  life  tenant  without  issue  or 

children,  1295,  1296. 


INDEX.  14:99 

References  are  to  pages. 

VESTING  (continued)  — 

vested  remainder  defined,  1297,  1298. 

early  vesting  favored  by  the  law,  1299-1301. 

examples  of  vested  remainders,  1303,  1304. 

contingent  remainders  to  classes,  1304-1307. 

effect  of  directions  to  pay  money  in  the  future,  1307-1309. 

remainders  subject  to  being  divested,  1311-1313. 

effect  of  a  power  of  disposal  upon  a  vested  remainder,  1318-1315. 

of  devises  and  legacies  at  majority,  1315-1318. 

contingent  gifts  which  vest  at  majority,  1318-1321. 

limitation  over  on  death  under  majority  as  affecting,  1321-1323. 

effect  of  gift  of  intermediate  income  on,  in  case  of  legacy  payable  at 

majority,  1323-1327. 
of  legacies  charged  upon  income  of  land,  1327-1329. 
executory  devises,  1329-1333. 
the  transfer  of  future  estates,  1333, 1334. 
acceleration  of  future  vested  estates,  1334,  1335. 
(see  Classes;  Perpetuities.) 

VOLUNTARY  SOCIETIES  (see  Unincorporated  Associations). 

VOYAGE  — 

contingent  wills  made  in  contemplation  of,  12,  14. 

w. 

WAIVER  — 

of  condition  requiring  consent  to  marriage,  649,  660,  661. 
of  condition  that  legatee  shall  not  contest  will,  649. 

WASTE  — 

condition  against  committing,  649. 

WASTE  PAPERS  — 

placing  will  among,  is  not  a  revocation,  319. 

WEAKNESS  — 

of  testator  to  show  undue  influence,  183. 

WEARING  APPAREL  — 

passes  under  bequest  of  personal  property,  414. 

"WHAT  REMAINS"  — 
meaning  of,  489. 

devise  of,  void  if  after  a  fee  simple,  489,  490,  1393. 
gift  of,  may  be  repugnant,  650. 
devise  of,  does  not  cut  down  a  fee  simple,  945-947. 
devise  of,  after  gift  witli  power  of  disposal  for  support,  940-943. 
repugnant  devise  of,  after  a  fee  may  be  rejected,  945,  946. 
devise  of,  after  a  life  estate  with  power  of  disposal  for  a  particular 

purpose,  947,  1313-1315. 
devise  of,  after  estate  for  support  of  A.  and  her  children,  947. 

WIDOW  — 

the  heir  or  personal  representative  of,  cannot  elect,  1035. 

election  of,  if  made  in  writing,  1023. 

election  of,  may  be  siiown  by  actions  or  declarations,  1024. 

must  have  time  to  ascertain  value  of  gift  in  lieu  <»f  ilower,  1022. 

may  revoke  an  election  proc\ired  by  fraud  or  mistake,  1013-1016. 

dower  of,  in  property  converted,  985,  980. 

of  testator  or  another,  when  allowed  to  take  as  an  heir,  831,  832. 

prima  facie  means  lawful  widow.  8()1-S()4. 

devise  to  A.  if  she  shall  bccoinf,  OS'J,  083,  n. 

remainder  on  death  of,  025.  1293,  1294. 

election  by,  conllict  of  laws,  32. 

(sec  DowEK.) 


1500  INDEX. 

References  are  to  pages. 

WIDOWHOOD  — 

validity  of  provision  for  one  during,  to  be  defeated  on  remarriage,  663, 

664.  1220.  r-393. 
the  character  of  the  estate,  666. 
may  be  for  hfe  or  in  fee  defeasible  on  remarriage,  293,  667. 

WIFE  — 

of  legatee,  her  competency  as  an  attesting  witness,  283. 

jealousy  of,  is  not  a  delusion,  127,  128. 

will  procured  by  influence  of,  invalid,  211,  212. 

ante-nuptial  relations  of,  to  testator,  212. 

of  legatee,  does  not  take  lapsed  legacy  as  a  relative,  453. 

legacy  to,  satisfied  by  gift  to  husband,  594. 

death  unmarried  may  mean  not  leaving  a,  634. 

provision  for,  while  living  apart  from  husband,  683. 

children  by  future,  719. 

gift  to  children  of  A.  by  particular,  719,  720. 

reference  to,  not  a  legal  wife,  759,  760,  762. 

legal  wife  is  presumed  to  be  meant,  754,  758. 

in  a  gift  to  a  family,  782. 

in  a  gift  to  relations,  785-787. 

devise  to  nephews  and  nieces  of,  793,  794. 

her  right  to  elect  in  the  community  property,  1054,  1055. 

lier  right  to  elect  in  case  of  a  devise  of  the  statutory  homestead,  1058, 

1059. 
(see  Married  Woman;  Husband  and  Wife.) 

WILD'S  CASE,  RULE  IN  — 

"children  "  may  be  a  word  of  limitation  under,  769,  770. 

application  of,  when  no  children  alive  at  date  of  will,  771,  773. 

estates  in  fee  tail  created  by  operation  of,  770-773. 

effect  of,  when  children  living  at  date  of  testator's  death,  773,  773. 

"children"  may  be  a  word  of  purchase  under,  771,  773. 

parent  and  children  taking  as  tenants  in  common  under,  773,  774. 

is  applicable  to  personal  property,  775,  776. 

rule  in,  applied  to  devise  to  issue,  911,  913. 

WILL  — 

defined,  7. 

need  not  dispose  of  property,  8-10. 
distinguished  fi-om  testament,  8. 
need  not  appoint  an  executor,  9-11. 

WITCHCRAFT  — 

belief  in,  is  not  delusion,  130. 

WITHDRAWAL  — 

of  consent  to  marriage,  658,  659. 

WITHOUT  HEIRS  — 

means  without  children,  834,  835. 
may  mean  without  issue.  835. 

"  WITNESS  "  — 

sufficient  as  an  attestation  clause,  275. 

WITNESSES  — 

not  required  to  holographic  wills,  15. 

to  insanity,  138-143. 

request  to  attest  a  nuncupative  will,  236,  237. 

to  execution  other  than  those  attesting,  291. 

(see  Attesting  Witnesses.) 

WOMAN  SUFFRAGE  — 
gifts  to  advance,  1318. 


INDEX.  1501 


References  axe  to  pages. 
WORLDLY  ESTATE  (see  Estate). 

WRITING  — 

consent  to  a  marriage  may  be  in,  659. 

WRITTEN  WILLS  — 
origin  of,  5. 

T. 

YACHTING  — 

bequest  to  encourage,  is  void  as  a  charity,  119S. 

YOUNGER  BRANCHES  OF  FAMILY  — 
de&ned,  784 

"YOUNGEST"— 
meaning  of,  23. 


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